Mediation is an opportunity for two or more parties to a legal dispute to address legal issues, enhance communication and work toward a positive resolution of the dispute. To increase your chance of achieving optimum results, consider taking the following steps.
Ensure Decision Makers Are at the Table
Make sure that you schedule your mediation session in such a way that all of the decision makers can be present at the same time. This provides a number of benefits. For the plaintiff, this allows the actual wronged party to present his or her authentic representation of what led to the legal dispute. This can be quite therapeutic for a plaintiff who may never have the chance to directly address the defendant through litigation. For the defendant, this allows claims adjusters, employers or other affected parties to be part of the ultimate resolution of the case. Additionally, it prevents the absent decision maker from vetoing an agreement at the last minute after hours of good faith negotiation.
If physical presence is not possible, consider modern ways to achieve a similar result through a conference call, Skype, videoconferencing or similar technology.
Prepare Your Client
Before mediation, review the facts of the case and the legal issues involved so that your client will be prepared for mediation. Ask your client to tell you the story about what led to the current conflict in his or her own words. If there is information that needs to be emphasized, let your client know ahead of time. Get your client to acknowledge weaknesses in the case and discuss ways around them. Review evidence that helps substantiate your client’s version of events and prepare this information for the mediation session. New information in the case often gives the other side a chance to reevaluate legal positions and potential settlement value while saving face. Discuss your negotiation approach before the mediation session so that your client has a better understanding of potential offers that may be made, as well as the ability to see when you are in negotiation mode.
Explain the Process of Mediation
It is important for your client to understand the process and goals of mediation and how these differ from trial before a judge and/or a jury. Mediation is guided negotiation that serves as an alternative to public, expensive and time-consuming litigation. The traditional remedy in litigation is monetary damages. However, mediation allows the parties to structure their own agreement, so remedies do not have to be limited only to money damages. For example, the defendant may agree to institute a new policy or provide a recommendation letter for a former employee as part of the agreement.
Even though mediation concerns legal issues, it can still be fraught with heavy emotions. A plaintiff may feel wronged after suffering a physical injury. A defendant may feel attacked with an impending lawsuit. As the attorney, it is important that your client feels like you understand his or her plight and that you are on his or her side. Addressing the emotional aspect of the case allows all parties and their counsel to humanize it. Once a client feels heard, he or she may be more willing to negotiate from a reasonable standpoint.
Prepare Yourself for Mediation
Attorneys should prepare for mediation to the same level as going to trial. Bring to the mediation copies of the police report, medical records, medical reports, medical bills (paid and not paid), pictures of the damaged vehicles, witness statements, personnel records (in an employment dispute), and legal research. The attorney can use this information to help educate the Mediator and opposing counsel and decision makers.