Mediation is a process in which the parties to a lawsuit (or potential lawsuit) meet with a neutral third-person and attempt to reach an agreement to settle or resolve the matter. Preparing for mediation when you have no lawyer may be tricky. But it can be done. Here are some tips to keep in mind.
Pick a good mediator.
If you have a choice as to which mediator to use, invest some time in research. Ask attorneys for recommendations. If you already have a mediator assigned, what do you know about her? How much experience does she have in these types of cases? If he used to practice law, did he represent plaintiffs or lawyers? If the other side suggested him, find out why.
Your goal here is to find a mediator that is well-experienced in achieving compromise in cases like yours. You also want to find out how your mediator will likely view your case, so you can focus your energy on speaking his language.
Prepare as though it were a trial.
Mediation is not therapy – it is not a place for merely discussing your point of view.
Focus on what you can prove.
Mediation is your chance to show the other side why you believe you will win at trial — and why they are better off settling with you today. To that end, you must prepare your case as you would for trial.
Bring every single document supporting your position. Do not wait to produce them at later time — the time is now.
Mentally prepare yourself to reach a deal.
Many people go into mediation with the idea that there is only one amount or outcome that they will accept. That is a surefire way to waste everyone’s time and, potentially, set yourself up to lose your case entirely.
If your case is about money, it is better to go into it with the idea of a range that you would consider.
Don’t tell yourself “I will accept only $25,000 and not a penny less” because what if the other side offers $24,995? What if they offer $24,750? Would you walk away and take the chance of losing at trial over $250?
The correct answer is: “I would not walk away; I would consider the offer.” If this is not your answer, then you are not ready for mediation.
Understand that neither side will get everything they want.
Nor should they. That is the whole point of mediation.
Don’t bother attending a mediation unless you understand that what this is, is your opportunity to prevent a zero sum result (i.e., one in which only one side wins and the other side completely loses).
Zero-sum results are what trials are for.
If you go to trial, no matter how strong you think your case is, no matter how right you believe you are, a judge or a jury may see it differently. And you can lose.
Here, at mediation, is your opportunity to at least have some say in which parts you win, and which parts you lose…
Mentally prepare yourself not to reach a deal.
The side that cannot afford to walk away from mediation, is that side that loses.
Be open to and, indeed, make it your goal to strike a deal. But assume, from the outset that you will walk away from mediation with no deal reached. So, in the time leading up to mediation, don’t conduct your affairs in such a way that the outcome will affect your livelihood.
In other words, aim for a deal; but don’t need one.
Identify your non-negotiables.
Rather than drawing a line at the minimum you will accept, think about what it is that really really matters to you.
If your concern is money for future expenses that may arise, tally up those likely costs ahead of the mediation. If having your kids on their birthdays and Rosh Hashanah is essential, then recognize that perhaps having them on Halloween is not a deal-breaker.
Organize your documents.
Get your materials together at least a week before your mediation. Print out anything you would rely on to prove your case at trial: documents, emails, text messages, photographs. Prepare a spreadsheet showing the figures that establish your damages. Bring a draft settlement agreement and release.
Your goal should be to have what you need at your fingertips the second you need them so that the mediator is armed with ammo in your support each time she goes to the other side’s room.
Consider retaining a day-rate lawyer.
Even if you are representing yourself in the underlying dispute/litigation, consider retaining a lawyer just to attend the mediation with you. What you need is someone who can keep you thinking rationally and who can alert you when you may be getting off-track.
In the alternative, consider bringing the most cool-headed person you know; make sure it is someone who has no connection to the case. The last thing you need is someone who will be talking you higher up the ledge.
Leave your ego at home.
Righteous indignation will not help you succeed at mediation. Save the tantrums and outrage for your loved-ones.
The other side already gets that you believe in your position.
Focus, for now, on showing them why.
Remember: It’s not over until it’s over.
Many cases settle after the parties leave mediation.
If there is a final offer on the table at the close of mediation and you don’t feel prepared to accept it, just ask for time to think about it. Don’t close the door on negotiations.
And remember, there is no shame in appearing reasonable (See Leave Your Ego at Home, above).
If you are the side who has left an offer on the table, don’t give up hope — a good mediator will often continue interacting with both parties in order to reach a deal even after you leave.
On the road to reaching a settlement, it’s not over until a judge/jury returns a verdict.
If the stakes are high, preparing for mediation should likely involve hiring an experienced lawyer to represent you.
Additional resource: State-by-State Directory of Mediators – National Academy of Distinguished Neutrals