Mediation Tips for Clients
The mediator typically does not have any decision-making authority in the context of the mediation. Instead, like any negotiation, the outcome of mediation is entirely in the hands of the parties. The mediator helps the parties by managing the exchange of information and other aspects of the negotiation process. Although much of the work preparing for mediation will be done by the parties’ lawyers, clients should keep in mind the following considerations to maximize the possibility of a successful outcome.
Consider the potential costs of not settling.
Consider the cost associated with the significant time and effort that will be expended preparing for and being present at trial. There are costs associated with not settling — time spent preparing for trial is time that could be spent running one’s business, spending time with family and friends, etc.
Understand that the mediation may continue.
While the parties and mediator will try to reach a resolution during in-person (or virtual) mediation, it is not uncommon for mediation to continue for days or weeks (or longer) by phone and email
Don’t expect to “win.”
It is rare for a party to “win” at mediation. Rather than viewing a final offer/demand as a win or loss, consider whether you will be content to have settled the following week when the dispute is no longer on your agenda.
Do homework ahead of time. Think about what your bottom line will be, while staying open-minded that it might change during mediation.
Expect to negotiate all day and (perhaps) into the night. Avoid the temptation to become frustrated with the slow pace of negotiations and blurt out your bottom line prematurely.
Keep an open mind.
Be flexible and open to settlement approaches that are “outside the box.” Someone with a preconceived notion of settlement may find that the mediator suggests alternatives that provide a better deal.
Be prepared to negotiate with the mediator.
Understand that although you want to be friendly with the mediator, he or she is focused on achieving settlement. The mediator’s interest (a settlement) is not fully aligned with your interest (a settlement favorable to you).
Feel free to talk directly to the mediator.
Mediation is informal, and clients can (and should) engage with the mediator. Try to demonstrate to the mediator your passion and conviction for your case.
Don’t feel the need to agree with the mediator.
The mediator will be using information provided by your opponent without knowing how truthful it may be. It is frequently inaccurate. While admitting truthful facts can build trust with the mediator and facilitate settlement, accepting inaccurate statements just to appease the mediator will hurt your case.