Preparing for Mediation

The most successful mediations are typically those in which both counsel and their clients are fully prepared. Thorough preparation means understanding both the legal and the practical dimensions of the dispute. Counsel will want to make sure that they understand the relevant law and facts, know the standard of review on appeal, and that they have considered how the appeal, and the litigation itself, serves the client’s larger goals.

Legal analysis alone may be only one part of the equation. What is often more important than the legal issues are the needs and interests of the parties. For example, what would a party need to feel satisfied with the outcome of the mediation? Financial security? Institutional change or a change in behavior? Avoidance of an unfavorable legal precedent or publicity? If the dispute arose in part because of issues of fairness and respect, can those issues be addressed at the mediation? Each case will present its own circumstances, but in every case the mediator can be much more effective if the parties are able to articulate their goals for the mediation.

It is also helpful to think about the other party to the dispute. What needs of the other side must be met for a resolution to be reached? It is easy to focus on those areas as to which the parties disagree, but consider whether there are areas of agreement. Are there common business interests or personal associations that the parties want to maintain? Are there issues arising from misunderstandings or hurt feelings that might be addressed at the mediation?

During the mediation process, each party will often evaluate a proposed settlement agreement by comparing it to the possible outcomes if the case does not settle. For that reason, it is essential to realistically consider the likely alternatives to settlement. For example, what happens if the appellant wins the appeal? Will that end the dispute, or will the litigation continue at the district court on remand? What might happen if a party loses the appeal? Will bankruptcy occur? How comfortable is your client with risk? Does your client value closure or certainty? As the parties consider the alternatives to settlement, they often factor in continued litigation costs (including the time and effort that will be spent) and the impact litigation can have on relationships and peace of mind. It is helpful to address all of these issues in advance of the mediation process.

Practical considerations are also critical when planning for the mediation session. The parties will want to consider whether the exchange of additional information would make the mediation more productive. For example, if your client has a judgment against it and believes ability to pay should be a factor in the negotiations, what information will help persuade the other side? Should other relevant litigation be included in the conversation? Also consider what information would help the mediator fully understand the interests.

Think about who needs to participate in the session. Mediation is more likely to be successful if each party has someone in attendance with full settlement authority who can make real-time decisions about the case. Opportunities for settlement may be hindered if the lawyer participating in the process is not the attorney whose judgment the client relies upon when making a decision. If decision making will require consultation with others, think about how best to involve them in the process. The telephone conference calls with the mediator are an ideal opportunity to explore these issues and to plan a process for exchanging necessary information and ensuring appropriate participation.

Counsel should encourage their clients to participate fully in the process with an open mind and a willingness to consider new ideas for resolution.

For a list of “Questions to Consider When Preparing for Mediation” please see the Resources section.

 

Page last update: 03/28/2024 07:41 PM