Good preparation is the key to a successful mediation. But how do you prepare for a mediation? What happens during and after mediation? MSNY mediator Lauren Wachtler walks you through it in the slides below – or scroll down to read more.
Preparing for Mediation
If you don’t have a plan, you plan to fail
Benjamin Franklin
Even though early mediation is often directed and certainly is favored by the courts, sometimes you do not have enough information to mediate. In that case, ask the court or agree with counsel for limited and pointed discovery exchanges in advance of mediation.
Advising Your Client: Preparation is Key
It is important to prepare for the mediation and to prepare your client for the mediation. Advise your clients about the mediation process.
Explore the client’s expectations. If the client has unreasonable expectations about the litigation (probability of a favorable outcome) then the mediation process will be that much more difficult. You do not want a client to learn about weaknesses in the case at the mediation!!
Should your client have reservations about engaging in the process, advise them that mediation is non-binding. Emphasize that engaging in mediation is not a “sign of weakness” but rather of strength.
Have a frank discussion with your client as to what the goal is – and make sure it is a realistic goal. Remember this is mediation and that does not mean the answer is “I want everything” or “I want to win.”
Perform a SWOT (strengths, weaknesses, opportunities, threats) analysis. Develop a best case, worst case, and bottom-line position.
Discuss creative outcomes (ex: maybe the relationship can be repaired and the clients can continue to do business).
Develop a Mediation Statement
Your mediation statement should not simply be a repetition of pleadings. Communicate the issues, strengths and weaknesses, value or lack thereof, etc.
Consider not only exchanging mediation statements with the other side, but also providing a “confidential – mediator only” statement that will not be shared with the other party.
[For more on mediation statements and submissions, see our articles, What to Include in Your Mediation Submission and Do’s and Don’ts of Mediation Submissions.]Who Should Attend?
Make sure people with authority to settle will be present at the mediation. Try to limit the number of officious intermeddlers who have nothing to offer but will knowingly or unknowingly sabotage a settlement- they can always be called if a settlement is imminent or if certain questions arise.
Planning the Mediation
Make sure enough time has been set aside to explore the issues. Avoid trying to cram a thoughtful process in because one of the parties needs to catch a flight or go to court. Confirm the timing of the mediation in writing in advance.
Find out in advance what method your mediator will use:
- “Caucus” method
- All parties in the same room for the duration of the mediation
- Begin in one room and then split up
Proceed with an open mind – that goes for both your client and YOU.
What Happens During and After the Mediation?
At the Mediation
What you discuss with the mediator is confidential. The mediator will convey your position to the other side only if you authorize it. Confirm this understanding with the mediator in advance.
Keep good notes!
If an agreement is reached, the mediator may ask the parties to draft a memorandum of understanding and have it signed before the parties leave.
•The memorandum can certainly reflect the expectation of a definitive writing and the need to seek input from colleagues on other issues, e.g., tax implications.
After the Mediation
The mediator will send a bill after the mediation is completed. Make sure your client is prepared to receive and pay it promptly.
This post was written by mediator Lauren J. Wachtler. You can learn more about Lauren in her bio here.