In order to be maximally effective, parties to a mediation should spend ample time preparing for the mediation. This means the following:
For most disputes, such as those involving money, there will be a bottom line in terms of how little is acceptable to receive, or how much is acceptable to pay. Don’t wait until the mediation to have this conversation. The bottom line for the amount you are willing to pay or to receive should be determined in advance of the mediation, not in the mediation. Knowing this amount will help you negotiate from a stronger perspective.
In a mediation, it’s important to recognize that everything that has happened in the past prior to a mediation – such as discovery, lost time from work, and attorneys’ fees – is a “sunk cost” in the respect that it cannot be recovered. In determining a resolution, these matters should not be taken into consideration.
What should be considered by litigants in light of a settlement is how much more time and money should be invested in a case versus a proposed settlement, and whether this time and money is likely to lead to a sufficiently better outcome. A chance for a small increase (or a small decrease) in payment may not be worth the additional time and expense. Conversely, in some cases an acceptable settlement offer may simply not be forthcoming, in which case continued litigation should be pursued.
People in general have a much better appreciation of their side of a case more than the position of their opponent. Nobody believes that that they are being unrealistic. In order to get the most out of a mediation, it is critical to have a realistic and unbiased view of your side of the case and that of your opponent.
In addition to preparing “position statements” for the mediator about the strength of your side of the case, your legal counsel should also give you a realistic assessment of your opponent’s side of the case, so that you can appreciate the neutral viewpoint of the judge and jury if your case goes to trial.
Trials almost always have win-lose outcomes. Not so with mediation.
In mediation, the parties are able to craft all kinds of creative settlements in order to resolve disputes. Even in cases that involve only a money settlement, there can be ways of structuring payments that might make a resolution more palatable, especially in consideration that a monetary payment structure is not available in a court award.
There is sometimes a tendency among litigants to think of a mediation as an informal “try out” to see if the other side is willing to take their offer. In these instances, litigants may not put in the time or effort that they would if the event was a trial instead of mediation.
Don’t make this mistake.
Going to mediation not fully prepared is a waste of a great opportunity of possibly settling a case early on terms that will be acceptable to you, which can avoid further costs and frustration. Being unprepared is also a huge negative signal to the opposing party concerning how serious you are taking the matter. If you’re not prepared now, how well will you be prepared for trial?
If you’re a litigant going to a mediation, understand that being prepared is not just the job of your lawyer – it is your job too.
We prepare client fully for mediation, and work to help develop strategies designed to achieve their desired outcome. If you are in a dispute or litigation, call us to find out more about how mediation may be helpful in your case.