As a lawyer, I know if I want to help my client win at trial, I have to prepare. The same is true with mediation; being prepared and approaching mediation in good faith with a goal of reaching an agreement is the key to successful mediation.
Being prepared for mediation means more than knowing the facts, law, strengths of your case, and your chances of winning at trial. Those are important, of course, but it’s also important for participants to understand and acknowledge the weaknesses of their case, the risks of going to trial, their emotional needs and roadblocks, and their willingness to compromise to resolve the dispute.
If you’re an attorney, you may have given your client high hopes for a big win at trial, but mediation isn't trial. Going into mediation, it’s important for your client to understand that their case may not actually be a “slam dunk,” that trial is messy and expensive and emotionally draining, and that things don’t always go according to plan even when you "win." (I'm reminded of a case where mediation failed because the plaintiffs were sure they would win, and they did—after one-week trial—but lost their motion for attorney's fees, and ended up settling after trial anyway—an expensive lesson that could have been avoided if they had been better prepared to compromise at mediation.)
Participants should understand what mediation is, how it works, and that it should be approached in the spirit of compromise with the goal of reaching a settlement rather than a check-the-box exercise undertaken only because it is court-ordered. And it’s important for them to have considered different possible settlement scenarios ahead of time so both they and their attorneys know not only what the client wants but what they’re willing to accept and what is realistic, not only for them but for the other party.
It is important for the attorney to go over the process with the client ahead of the session, to review the client’s position and draw out the client’s needs and interests, and play devil’s advocate if appropriate, discussing best, worst, and most-likely outcomes and challenging the client’s entrenched positions, and explore the client’s response to possible settlement scenarios that may come up during the mediation. Ask your client: Where are you willing to start? Is this more important to you than that? If they offer this, how will you respond? Where do you want to end up? Do you have a bottom line?
Having a discussion with your client is especially important if your client has an emotional roadblock to settlement. It can take time to help some clients get to a place where they are emotionally ready to mediate. If the come into mediation without being emotionally prepared to compromise or sometimes even talk about difficult issues, they are much less likely to have a successful mediation. But if they've already worked through some of these difficulties ahead of the session, they are much more ready and willing to talk, listen, and have a more-successful outcome whether the case settles or not.
Another way to prepare for mediation is to draft a good written submission to the mediator that lays out the facts and law—both good and bad—and identifies the strengths and weaknesses of the case, as well a summary of what the client hopes to achieve but also what they might be willing to accept. Most mediators ask for written submissions and key documents so they can understand the issues and settlement positions of the parties ahead of time, but even if they don't, putting it in writing is a good exercise that allows both attorney and client to be on the same page as far as mediation strategy and desired outcome.
In cases that involve mandatory court forms, such as asset and debt schedules, parenting plans, and support worksheets in divorce and parenting cases, the parties should prepare drafts ahead of the mediation and share them with each other and the mediator so they can identify areas of agreement and dispute ahead of the mediation.
It can also be helpful to prepare a draft settlement agreement ahead of mediation that can be used as a roadmap for staying on task during the mediation and focusing on the issues to be resolved. It is also a working document that can be modified as the mediation progresses and potentially save time in drafting an agreement once a compromise is reached.
Being prepared can also send a message to the other party that you are ready to go to trial if mediation is unsuccessful. When both parties come to mediation well prepared, everyone knows that trial is inevitable—with all of its attendant risks, costs, and emotional strain—if the case doesn't settle.
You wouldn’t go to trial unprepared, would you? Not if you wanted to win. The same is true of mediation; if you come to mediation prepared, the more likely your mediation will be successful.
For more information or to schedule a mediation or consult regarding legal representation, contact Jeff at (206) 397-0020 or jeffsmootlaw@gmail.com. I look forward to working with you!
Copyright © by Jeffrey L. Smoot.
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