10 Suggestions For Lawyers Heading Into Mediation

October 16, 2007

I’ve just had a call from a lawyer with whom I have a large mediation coming up in November.

She asked me what she could do to prepare her client John, for what is probably going to be the most important meeting of his life.

Apart from the usual prep like identifying interests etc I advised her to:

1. In the time beween now and November try not to poison the well from which she will drink on mediation day – start ‘mediating’ now within the litigation

2. Prepare John to interact with me on a personal level. He needs to talk to me and should treat me as a confidant, not the enemy. Please trust me (or let me earn that trust)

3. Anticipate a predictable start to the negotiation where the other side asks for the moon and make sure John is prepared to respond in a way that keeps the dialogue going

4. Have John explain the personal side of the dispute to me, in front of the other side. Be prepared to do this early

5. Use me – make me earn my fee. Seek out my reaction to the story of the case and the negotiation moves that are unfolding. Give me a heads up on the negotiation moves John is contemplating – test them on me – I can often help

6. Acknowledge risk while expressing confidence in John’s position. Make any negotiation moves credible – that means resisting the temptation to do the complete opposite of the other side’s moves

7. Ask me hypothetical questions in joint session – it’s a way of John gently revealing where he is without being direct (I haven’t talked to John about this but what if…? what would…? imagine we…)

8. Don’t be surprised by deceptive moves and statements – expect them

9. Let me know all of the constituents John has to consider to get to yes – not just those at the table

10. Cut me some slack – you don’t want a quitter. It’s 80:20 most days

Thanks to my IAM colleagues and Jeff Krivis

Geoff Sharp

Geoff Sharp is a Commercial Mediator from Wellington, New Zealand. Geoff works in the Asia Pacific region, including New Zealand, Malaysia, Thailand and Pacific Islands. He is a mediator resolving business problems. He is a fellow of the International Academy of Mediators and mediates complex and hotly debated litigation covering… MORE >