Whether a mediation is mandatory or voluntary, the attitude that each participant brings to the mediation is critical. Mediation has the greatest opportunity for success if every participant agrees that it is a useful process with real potential to resolve the issues in dispute. A reluctant or wholly pessimistic participant is less likely to achieve a positive result than one who anticipates and prepares for success. Even someone who is participating only because the process is mandatory can improve chances for success by willingly investing time an energy in listening and exploring solutions.
Attitude aside, there are three critical keys to preparing for effective mediation: being ready; understanding options; and understanding roles.
Mediation is a time-limited exercise. It is important that all participants come prepared. That means doing homework in advance. Every party should ensure that any document that may support their position – correspondence, reports, invoices, financial statements, etc. – is available at mediation. Be familiar with all of the facts and issues relating to the dispute. It is especially helpful to consider the facts and issues from the perspective of all other parties. Consulting with legal advisors may ensure you have all the necessary documents and perspectives. Even if you are taking a lawyer with you to mediation, it is important that you are personally prepared. The dispute is yours, and the settlement must be one that satisfies you.
When considering the importance of being ready, do not forget about the mediator. The mediator needs to know all of the relevant facts and issues if he or she is going to be of any help. Many mandatory mediation processes require that the parties provide the mediator with a summary of information in advance. Even if your mediation is a voluntary one, the parties should consider providing information to the mediator ahead of time.
Whether your mediation is mandatory or voluntary, you will not be forced to come to any settlement. Not all mediations succeed. Whenever you make a decision to accept or reject a settlement at mediation, it is important to know what your options are. If no settlement is reached, what will you do next? Proceed to litigation, abandon the issue, or something else? What are the opposing parties’ options if no settlement is reached? Be sure to give thought to the costs – in time, money and energy – of pursuing the dispute through the courts if no resolution is reached.
Careful consideration of the options will help you to identify opportunities during negotiation, and also to understand the risks of not reaching a settlement. Getting legal advice or representation can be a useful way of identifying the whole range of options. Your lawyer can also explain any limits on a court’s authority to resolve the issue in a way that will satisfy you. Understanding those limits might help you consider creative solutions at mediation.
Unless you are participating in a hybrid mediation-arbitration, remember that the mediator cannot order any party to do anything. The mediator’s job is: to help the parties communicate and explore options; to help the parties to understand each other’s position; and to identify opportunities for resolution. While doing so, the mediator may clarify, re-state and describe the other party’s position or concerns. The mediator will not advocate on behalf of any party, and has no personal stake in the outcome.
If you decide to take a lawyer to the mediation, you should discuss his or her role in advance. Consider whether settlement is more likely if your lawyer does most of the talking, or if you are an active participant. The balance you strike may depend on how technical or detailed the case is. It is likely, though, that the mediator will want to hear from you and not just your lawyer. Always remember that the dispute is yours. Your lawyer will provide advice and suggestions, but will seek instructions from you.
For assistance with any mediation, consider seeking legal advice.
Dispute Resolution Reference Guide
Guidance: Preparing Yourself for Mediation