Preparing for Mediation

One of the keys to successful mediation is preparation.  To prepare for mediation, each party should be certain about its interests, expectations, and goals. Before the process begins, each party should prioritize its needs, make sure its proposals are reasonable considering the facts and applicable law, and brainstorm various solutions.  Before the mediation, parties should discuss the strengths and weaknesses of their case and the other parties’ case.   This will help each party have realistic expectations during the mediation.

Parties should calculate the total of all medical expenses and other special damages.  Each side should bring to the mediation all documentation and other evidence necessary to support its case. These may include exhibits, documents, graphs, photographs, charts, or any other form of evidence. The parties should exchange all discovery responses prior to the mediation so that both sides have sufficient information.

Each party should prepare an opening statement for the joint session. The opening statement is your opportunity to speak directly to the other party. It allows you to inform the other side about your interests and goals in resolving the litigation.  It is a good opportunity to clear the air so that you can concentrate on resolving the legal dispute.

Each party should come prepared to be patient.  Mediations are a creative and dynamic process.  There are no set time limits and you cannot rush the process.    Once the joint session has been completed, the parties will separate into separate rooms.  The Mediator will be going back and forth between the parties.  At various times, the Mediator may need to spend more time with one party.    This is natural.    While  one  side  has considered a position for weeks or months, the mediation may be the  first  time  the  other  side  has  considered  that  position.  Sometimes it takes a while for a party or counsel to understand a proposal and to consider it and possible other offers.    Keep in mind that most mediations result in settlement if sufficient time is allowed for the mediation process to work.

Most importantly, each party must come to the mediation with an open mind prepared to listen, not just hear.  Listen to the mediator and allow her to do her job for your.  As a neutral and unbiased third party, she has no interest in seeing one party obtain a better result than the other.    Her sole job is to facilitate an agreement that all parties are comfortable making.  Listen to the presentations of the opposing party(ies) during the joint session.  It is fairly common to learn new information during the opening statements.  Be receptive to learning new information and deciphering how it may impact on your prior assessment of the case.  Listen to yourself.  Although you should remain open to the suggestions of the mediator, your counsel, opposing parties, you should still listen to your inner voice.