You’ve decided to resolve your dispute through mediation, hoping it will bring an end to the stressful, time-consuming process. The dispute has drained your focus from more productive matters, and the mounting legal bills are only adding to your frustration.
So, what can you do to improve your chances of a successful mediation?
This series will provide useful tips to help you navigate the process.
Tip #1: Prepare, Prepare, Prepare
The importance of preparation for mediation cannot be overstated. It’s surprising how often parties show up unprepared, possibly due to the informal nature of the process. Unlike court proceedings, mediation is private, can be stopped at any time, and doesn’t involve a judge or decision-maker. Because of this, some believe they can "wing it" and avoid the effort and expense of thorough preparation.
This approach is penny wise and pound foolish. Mediation isn't meant to be just another costly step in the litigation process; its goal is to resolve the dispute entirely. Therefore, although mediation preparation differs from trial preparation, it should be taken just as seriously to increase the likelihood of settlement.
Here are some key areas to focus on when preparing for mediation:
Prepare a clear, concise, and rational statement of your case: This should outline why you believe your position is correct or at least deserves serious consideration.
This statement will form the basis of your presentation at the start of mediation. It’s essential to keep your statement rational. Too often, parties make hyperbolic or inflammatory statements that only serve to raise tensions and put the other party on the defensive.
Remember, the goal of mediation is to persuade the other side that you have a credible case. Being antagonistic in your opening statement won’t help achieve that.
Decide on your bottom line: Before the mediation begins, know what you believe is a reasonable compromise. This will help ensure that you stay focused during negotiations.
However, be prepared to adjust your bottom line based on what you learn during the mediation. One of the benefits of mediation is hearing the other party’s perspective before a judge does. If new facts or perspectives emerge, you may need to revise your bottom line accordingly.
Consider creative solutions: While the dispute may seem to be solely about money, there could be other ways to resolve the issue. For example, you might explore future business opportunities together or agree on joint environmental testing if there’s uncertainty about the extent of a problem. In some cases, cooperating to remediate a contaminated site or including remediation in future property development could help minimize or postpone costs.
In the next installment of this series, we’ll discuss other important considerations before your mediation session begins.
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