That’s right – the title suggests you can win in mediation even though many say that you will walk away from a settlement either angry or disappointed. With proper preparation you, the client, can leave mediation feeling like a winner and with an agreement in hand. The key, as in most things in life, is to be prepared. The good news is that your lawyer will help you to prepare, but you need to take on some homework as well.
Mediation is likely your last opportunity to settle a dispute on terms agreeable to you before a judge or jury makes a decision which will impact you and/or your business in unpredictable ways. Seize this moment, control your own destiny and work towards a solution that makes sense for you. The first rule is the hardest: be prepared to try a new approach. You are most likely in mediation because all of your other strategies to resolve the matter have failed. The presence of a mediator will help. He or she sets the tone and cadence of the discussions. You will have a neutral person present to help you talk through your issues as well as the emotions that have developed. The mediator will ask you questions in order to clarify your position and help you understand the other side. Remember, the mediator’s job is to help you reach a mutually agreeable solution.
Think about the “what if” or worst-case scenario if you fail to resolve the matter at mediation. This is the most crucial step in the process of preparation. If you fail to settle, will you face a potentially crippling jury verdict? Will you continue to pay substantial legal fees and face an uncertain outcome? Is your job on the line because of this dispute? Each situation is different, but these are the crucial questions to ask. The “what if” scenario must stay in the back of your mind and frame your discussions. If the worst-case scenario is something you can live with, then you are the rare client and may miss a golden opportunity to reach an agreement.
Ask questions about the process. Make sure you understand the mediator’s role. He or she is not advocating for the other side; instead, they are trying to help you understand the position of the other party involved and where your theories may have weaknesses. Understand that mediation is not a debate or contest of strength. Your adversary feels just as strongly about its case as you do. If it were a clear cut case, neither of you would be there. Do not be afraid to question the process both before and during the mediation.
Meet with your attorney and prepare. Make sure everyone on your team is on the same side and that counsel understands your goals. Go over the proposed opening statement. Decide if you will deliver all or part of the opening statement or if you will speak during the joint sessions. As a young lawyer I was taught that this was taboo. I have seen this ADR tactic more as of late, especially in cases I have mediated, and have come to believe that it is incredibly effective in the right setting. This is a strategic decision and must be carefully vetted during your preparation. Even if you decide to have your attorney deliver the opening, be ready to speak. When I act as a mediator I always ask the party if he/she has anything to add to the opening.
As you prepare, think about the other party. You have already thought out the “what if” scenarios but there is more to think about. Try your best to consider the other party’s point of view. You know what you need to achieve in an agreement; think about what your opponent will need. Come prepared on those issues but listen as the other party talks for clues. If there is something you can give them early it will help you achieve your ultimate goal. Often times a party will indicate something minor and unimportant to you, for example payment of a minor invoice or request of a neutral letter of recommendation – give it to them. It does not hurt you and it builds trust and momentum.
Understand that mediation is a discussion and not an opportunity to scream at the other side. In private sessions, feel free to talk to the mediator about your anger or other emotions. However, when you are in the room with the other side during opening statements or joint negotiating sessions keep your emotions in check. Your attorney’s opening statement (or your own remarks if you chose to make them) is not a chance to insult the other side but, rather, an opportunity to educate your adversary. While this rule seems simple it is the most violated rule. Well-meaning people can’t wait to hurl an insult or get in a dig to establish the strength of their position. Sure, calling the VP of Sales for your largest vendor an incompetent idiot makes you feel better but will that make him acquiesce to your every demand? It does not work; don’t do it. The following are other actions and behaviors that should be avoided at all times during mediation:
Do not threaten the other party
Do not make value judgments about the other party’s feelings or comments, for example, “Quit whining, grow up” or “Everything you just said is a bunch of pathetic lies”
Do not start out demanding an apology
Leave the sarcasm and caustic humor in the parking lot
Avoid angry body language
Never misrepresent facts; the process is about trust building
Avoid “always/never” statements.
Now that you have done your homework and prepared, it is time to participate in mediation. If you have thought about what will happen if you don’t resolve the dispute, and you have considered the other side’s perspective you are ready to win your mediation. You can leave knowing that you achieved your goals and settled the dispute on your terms.