Preparing for Mediation: A Practical Guide to Opening Remarks

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A high percentage of disputes that give rise to lawsuits are resolved before trial. Attorneys negotiating on behalf of their clients may resolve a suit before trial or the dispute may be resolved in mediation.

If you are involved in a difficult dispute and the conlict has escalated, it is likely you will be involved in litigation. You are headed to trial. Yet, before you reach the courtroom, there is a high probability you will negotiate a settlement agreement that resolves the dispute.

In order to maximize the satisfaction you will achieve in your negotiation you will need to spend time preparing. Like an athlete, your results will be directly related to your preparation. Too often we spend considerable time and money preparing for trial but far too little time preparing for mediation. We put our energy into the Fight rather than the Fix.

Paradoxically, mediation often requires more extensive client preparation than litigation. In my role as a mediator, I frequently see parties arriving unprepared, lacking fundamental knowledge of the process. They arrive uncertain about their role and uncertain how they will achieve the success they desire.

Preparing for Mediation was designed to solve this problem. The guide is intended to assist attorneys and clients prepare for success in mediation. Even if your dispute has not yet resulted in a lawsuit, in these pages you will End valuable assistance for resolving conlicts.

Mediation involves working with the full range of human challenges, which makes simplifying the process difficult. If the description is too abbreviated, vital information may be omitted. On the other hand, parties tied up in a dispute End time is at a premium; if preparation takes too long they abandon the work. For this reason, Preparing for Mediation offers a comprehensive yet streamlined approach that can be completed in a reasonable amount of time.

Different approaches to the material are possible. Your attorney may guide you through the preparation, focusing your attention on select prompts. Or you may read the entire text, respond to the prompts, and then meet with your attorney to discuss your responses.

At the outset two legal concepts should be discussed with counsel: attorney-client privilege and mediation con!dentiality. These concepts concern your right to protect your preparation work from discovery and maintain confidentiality. As you may know, most discussions with your attorney are privileged communications; this allows you to engage in frank exchanges while preparing for trial or mediation. In addition, in most jurisdictions, statutes regulate mediation conEdentiality, protecting communications and materials prepared specifically for mediation.

Confidentiality is vital for mediation success; legislators and courts recognize its importance. As statutes vary from venue to venue, however, it is important to discuss privilege and confidentiality with your attorney, thus insuring your notes and responses to the prompts in this guide are protected.

Welcome to mediation preparation. I encourage you to put forth your best effort, as your preparation will be well rewarded in the satisfaction you derive from a negotiated outcome.

Introduction to Conflict

Let’s get started. In each chapter, key mediation concepts will be introduced, followed by prompts for you to consider. Document your responses in a personal journal, labeling and identifying the material as “work product prepared in consultation with legal counsel, intended exclusively for mediation.”

We start with an introduction to the basics: What is conflict? What is mediation? What are my options?

Conflict
Conflict can play a negative role in our lives, ruining our health, happiness, and prosperity; but it also can result in growth that makes us wiser, happier, stronger, and more committed in relationships. Our experience with conflict depends on our skill in managing and resolving conflict.

In addition, the way we view conflict affects the consequences we experience: if we view conflict as an opportunity to increase understanding and collaboration, the process can be therapeutic and uplifting. If we are confident in our conflict resolution skills, we experience more positive outcomes. Therefore, it makes sense to take a moment to assess our skills
and our attitudes toward conflict resolution.

Do you feel you can make a difference in the outcome of this dispute?
Why or why not?
Do you possess skills needed to engage in mediation?
What new skills will you need to acquire?
What skills will others provide?
Will you rely on others for vital skills?
Will you take advantage of an opportunity to resolve conflict?
If you are invited to mediate, will you accept the invitation? Why or
why not?

Conflict Resolution Options
Mediation is not the only approach to resolving your dispute. To better understand the advantages mediation oFers you will want to understand the range of options available. The diagram below identifies major confict resolution approaches.

On the left side of the chart, we find less formal approaches; on the right, more formal approaches. Options on the left honor party self-determinism, while options on the right call on a third party – a judge, jury or elder – to render a decision or verdict. Mediation, located near the center, blends informal and formal techniques in a facilitated negotiation that seeks a resolution agreed upon by the parties. You may arrive at mediation having failed to achieve resolution with less formal or more formal processes. You may have tried to “talk it out” and failed. Or you may have filed a lawsuit but now wish to attempt mediation before trial commences. Assess your prior efforts.
Have you attempted to resolve this dispute using other processes?
What did you try? What happened?
Are you still involved in another process?

Mediation and Causes of Conflict

Mediation seeks to handle the underlying causes of conflict. It is a flexible and creative process that addresses psychological and emotional aspects of relationship – as well as contracts, rights, liability and damages, and other legal concerns. A court trial rarely explores interpersonal issues simmering beneath the surface, whereas mediation excels in addressing substance and relationship. Mediation flexibility increases opportunity
for reconciliation.

Typically your lawyer accompanies you through the process. She often introduces the dispute on your behalf in a mediation brief and/or in an oral presentation. As the process advances, you are encouraged to take an increasingly active role.
While negotiation regarding substantive issues (deal points) plays a central role in mediation, re-negotiating the relationship is often just as important. The manner in which parties treated one another is frequently an issue that needs to be resolved.
In this dispute, must you resolve interpersonal issues before you can resolve issues regarding substance?
What interpersonal issues do you anticipate must be addressed?

No Penalty, No Downside

If mediation reaches impasse and parties are unable to achieve a collaborative agreement, they are free to end the process without penalty and return to litigation to seek a verdict. Thus, the decision to mediate has little or no downside.
Do you consider you will be taking a risk if you decide to mediate?
Describe the risk, if any.

The Trial Experience

A court trial is a formal process with extensive procedural rules. A judge or a jury determines the outcome, known as the verdict. At times we value a third-party decision; we may want to distance ourselves from the outcome, particularly when it appears an adversary is so wrapped up in the con9ict he will be unable to let go and end the conflict. In such situations, there may be value in a verdict over which you had little or no control –
in essence one hopes the other party will transfer their blame to the court. In this dispute, will you need to transfer blame and hostility regarding the outcome to the court? Describe.

Litigation Expectations

Trials rarely provide a high level of satisfaction. In the courtroom, the jury hears a narrative account constrained by legal procedures. This trialbased narrative usually does not match the party’s version of what happened. As a result, parties often feel unable to make their concerns fully known. The idea you will have your day in court when you get to tell your story becomes an unrealized dream.
For this reason litigation outcomes rarely meet party expectations, even for those who win. Time lost and money spent further diminish satisfaction; victory may be rendered bittersweet by embarrassing public exposure of private matters; stress and worry exact an emotional toll. In contrast, in mediation parties are encouraged to speak in depth, not only about the facts of the case but also about their feelings, motives, concerns, and interests. There is a subtle shift from attorney presentation to client participation.

Mediation fosters your involvement and collaboration whereas, in a trial, you have little or no direct interaction. In mediation, you help determine the outcome, which contributes to your satisfaction.
In addition, mediators have found success is more likely when parties are encouraged to address their relationship. Once these relationship challenges are overcome, you are better prepared to engage in collaborative problem solving. The resulting collaborative outcomes, which honor party self-determinism prove more durable; and compliance with settlement terms frequently proves to be greater than compliance with trial verdicts.
Do you desire the opportunity to tell your story?
Do you look forward to explaining what happened?
If you are unable to tell the story of what happened, will you be upset?
Do you want or need to hear the other party’s story?
Does the public exposure you will receive during a trial concern you?
Are you prepared for the stress of a trial?
How important is it for you to play a role in determining the outcome?
How comfortable are you letting someone else (a judge or jury) decide
your future?