You’ve decided to resolve your dispute through mediation, hoping it will bring an end to the stressful, time-consuming, litigation process. The dispute has diverted your attention from your business, and your legal bills are painful and seemingly never-ending.
So, what can you do to improve your chances of a successful mediation?
This series will provide tips to answer this question.
Tip #1: Prepare, Prepare, Prepare
The importance of preparation for mediation cannot be overstated. It’s surprising how often parties show up at a mediation unprepared, possibly due to the informal nature of the process. Unlike court proceedings, mediation is private, can be stopped at any time, and doesn’t involve a judge or decision-maker. Because of this, some believe they can "wing it" and avoid the effort and expense of thorough preparation.
This approach is penny wise and pound foolish.
Mediation isn't meant to be just another costly step in the litigation process; its goal is to resolve the dispute entirely. Therefore, although mediation preparation differs from trial preparation, it should be taken just as seriously to increase the likelihood of settlement.
Tip #2: Prepare a clear, concise, and rational statement of your case
This should outline why you believe your position is correct or at least deserves serious consideration. This statement will form the basis of your presentation at the start of mediation. It’s essential to keep your statement rational. Too often, parties make hyperbolic or inflammatory statements that only serve to raise tensions and put the other party on the defensive.
Remember, the goal of mediation is to persuade the other side that you have a credible case. Being antagonistic in your opening statement won’t help achieve that.
Tip #3: Decide on your bottom line
Before the mediation begins, consider your bottom line. This will help ensure that you stay focused during negotiations.
However, be prepared to adjust your bottom line based on what you learn during the mediation. One of the benefits of mediation is hearing the other party’s perspective before a judge does. If new facts or perspectives emerge, you may need to revise your bottom line accordingly.
Tip #4: Consider creative solutions
While the dispute may seem to be solely about how much a party has to pay the other, there may be other, more creative, approaches that might promote settlement.
For example, to minimize costs you might suggest that a single environmental consultant be engaged by both parties to assess the extent of the contamination or to carry out the remediation. Or perhaps remediation could be postponed until the property is developed in the future when it could be carried out as part of the development.
If the parties’ relationship hasn’t totally broken down, you might consider whether settlement might open the door to future business opportunities together. Consider whether there might be feasible creative options and bring them to the mediation.
In the next installment in this series, we’ll discuss more tips on how to increase the odds of a successful mediation.
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