Preparing for Mediation

By J.D. Hensarling
Attorney at Law


Many commercial and civil cases will end up in mediation.  Mediation is the informal process in which the parties discuss and negotiate a possible resolution of their case with the help of a third-party neutral.  The process works.  As they anticipate mediation, parties often ask what they should do to prepare.  Here are some thoughts.

Do your homework.  Learn as much as you can about your case and the other side’s case.  You can do this informally or through the discovery process.  You may have a chance to review documents, talk to witnesses, and review written responses.  Use this time to collect the information you need to inform yourself about your case.  If you are missing any information, work to get it before mediation.  It will be difficult to settle a case without reviewing the necessary information.

Assess your strengths and weaknesses.  You may need a third party to help with this assessment as it is often difficult not to think too highly or positively about our case and too negatively about the other side’s case.  This is known as, “drinking the Kool-Aid.”  Your view of your relative strengths and weaknesses can become too narrow or skewed and limit your ability to perform a meaningful assessment fairly and honestly.  Work to avoid this trap. 

Know the parties and their roles.  The mediator is a third-party neutral who is there to help the parties communicate and assess their positions.  The mediator is not a judge and will not make any ruling in your case.  The mediator is not an advocate for one side or the other.  She is there to ask questions and help you think about your case.  She will assist the parties in communicating ideas, offers, and demands.  The mediator should be working with all parties toward the common goal of resolution.  The mediator is not there to evaluate or assess your case.  The mediator can help you assess your case, but their personal assessment may not serve the mediation process.

Make sure the necessary parties are there.  A decision-maker is required to attend for each party.  Are there other people who should attend?  Would their presence help or hinder the process?

Listen!  Depending on where you are in the litigation process, mediation may be the last best chance you have to listen to the other side.  After all, if you are in litigation the parties are probably not communicating or listening to each other.  You need to listen and hear what the other side is saying.  Process, analyze, and assess what they are saying about the facts and witnesses, their side of the case, and your side of the case.  They may provide you information you have not yet heard or considered.  This information may help you settle the case.

Be creative.  Most people think mediation is one side paying money to the other side.  Cases do settle in this way.  But cases also settle using non-monetary offerings as well.  Consider what the other side is demanding or offering.  Could their proposal work?  Consider an apology, a new contract or order, continued or new business opportunities, agreement not to do certain things or take certain actions, removal of social media posts or online statements, giving more time, working together to sell a business or asset, or some other creative proposal.  Mediation affords you the unique opportunity to fashion creative solutions to the problem.    

Consider the costs.  How much has it cost you to get to this point?  How much will it cost to go through trial?  What issues will the court or jury be asked to decide?  What relief will they be able to give?  Are these expenditures or results better than a negotiated settlement fashioned by the parties?  Is trial the best way to get the result you seek?

Be ready to settle.  Be open to the settlement process.  A party with several possible settlement scenarios will be more likely to settle a case in mediation than a party with one firm, unmovable demand.  Be ready to allow the mediation process to work.  It is a process and can take several hours.  Be patient and engaged in that process.  By doing so you will be more likely to achieve a positive result. 

If you need representation in a mediation or are looking for an experienced attorney to serve as a mediator, please give us a call to discuss.  The attorneys at Vann Attorneys would be happy to discuss these matters with you and help if we can.

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