Negotiation Tips to Help Settle your Case in Mediation
Mediation is a way for people who are having a dispute to talk about their issues and to make decisions regarding the dispute with the help of a neutral third party called a mediator. In mediation, the mediator is there to help you find solutions. The goal of mediation is to reach a settlement. Here are some tips to help you set yourself up for a successful mediation.
1. Know when to Mediate.
As a mediator, I mediate for parties before a lawsuit has been filed as well as during different stages of the formally filed lawsuit. The timing of mediation depends on what is right for your individual circumstance. For some people, its advantageous to mediate before a formal lawsuit is filed because once a lawsuit is filed, emotions become more extreme which is generated by the litigation process as well as the amount of attorneys’ fees spent to fund the litigation. For other people, they need to go through the process of litigation to gather important information and experience how the litigation process can go before they are ready to settle. Whichever category you fall into, mediate when you feel ready and are able to enter into a settlement that involves mutual benefit for both parties and is not one-sided.
2. Be Prepared
In order for mediation to be successful and productive, everyone must be prepared. Just like you wouldn’t walk into a trial unprepared, neither should you walk into a mediation unprepared. If you are attending mediation without an attorney, make sure you understand the facts. If you have legal questions, consult with an attorney prior to the mediation as a mediator cannot provide you with legal advice.
Before decisions are made in mediation, it’s important that all necessary discovery is complete. Mediation is most effective when the parties are able to make good business decisions. In order to make a good business decision, each party needs to be fully informed of their situation and what the law provides. When key discovery has not been exchanged or important depositions have not yet been taken, parties are hesitant to reach agreements out of the fear of the unknown. It’s important that all key information is exchanged prior to engaging in mediation.
3. Be Open and Honest
The best way for the mediator to assist the parties is to be open and honest with the mediator. The parties can be comfortable being open and honest with the mediator, because everything that is shared in mediation is confidential unless it is required or permitted to be disclosed under the law. When honest information is shared between the parties, the participants will feel more comfortable. By withholding important information or being untruthful, it makes the other mediation participants suspicious of the other party and makes the mediation counter-productive.
4. Be Patient
On average mediation can take anywhere between 2 hours to several sessions spread out over multiple days. During the mediation session, you may be waiting for the mediator while she is in the other room for an hour. Even though the process can be long, it’s always important to remain patient. Usually when one party tries to rush through the process, the mediation results in an impasse. Mediation takes patience, and with patience it will be worth having the case resolved through mutual agreement instead of leaving the outcome in the hands of a stranger by going to court.
5. Compromise and Be Flexible.
If you were going to settle based upon your best day in court, or the other side was going to settle based upon their best day in court, neither one of you would be in mediation. In mediation, its important for you to evaluate what your risk is if you go to court. In mediation usually neither party will settle on their worst day in court, but its important for you to make your risk evaluation in order to compromise and reach an agreement.
6. The Goal is to Settle. Treat your Mediation that way.
The goal in mediation is to find a resolution that everyone can live with. Your objective in mediation is to try to convince the other side how that outcome is preferable to the unknown outcome that comes when you choose trial. Control over a known outcome in mediation can be better than an unknown outcome when you go to court. When you go to mediation, this should be the mindset.