Client Do’s & Don’ts in Mediation
Leading Up to the Mediation
Mediation is a great way to help those experiencing conflict come to a resolution outside of court, or even before getting involved with court, ideally. However, most parties don’t know where to start or how to prepare.
First, look around at different types of mediators. If you have an attorney, they will pick the mediator for you in agreement with the opposing party or their attorney. If neither of you have representation, you will have some more freedom about the type of mediator you choose. Once you find a fit, it is time to try to reach out to the other party if they are not already on board with mediation. They have to consent to mediate and to use that mediator, as mediation is always a voluntary process. Depending on the situation, but most typically when the relationship between the parties is very tense, the mediator can reach out to start a dialogue with the other party and persuade them to try mediation.
Once you have a date scheduled for mediation, it is time to prepare if you have not already done so. When you participate in mediation, it is vital that you know ahead of time what you are going to ask of the other party and be able to articulate why you’re asking for it. You need to have evidence to back up whatever claim or defense you’re making, otherwise you won’t be convincing anyone about anything—in mediation or in court. If you are represented, be sure to give everything to your attorney as soon as possible.
Before going into mediation, it is important to understand that not everything is as easy as they make it seem on television. Even if you feel like you are entitled to a certain judgment or have a great defense to a potential claim, it doesn’t mean things will happen the way you envisioned. Many factors can create problems in your case you didn’t see coming. Judges decide things differently than you’d expect, parties go bankrupt, default or simply disappear. Sometimes a judgment in court turns out to be a piece of paper you can’t do much with. I’ve seen it happen many times. Even when judgments are awarded and the opposing party has the funds, it is not always easy to collect. People try to avoid debt and at times professionals who take a large commission need to be hired. Conversely, if you are having to defend against a claim—even if you feel you have a great defense—know that things don’t always go as planned in the same manner, and you can’t always trust in the court system’s ability to give you the result you feel is just. Even when facts and law seem to be on your side, the time and expense involved in litigation make settling early the smarter financial decision oftentimes when compared to the alternatives. It is very important to be as realistic as possible about your expectations of litigation, factors concerning the other parties, and problems with your case.
During Mediation
Most mediators set their own ground rules for how they’d like the parties to conduct themselves. However, as a general rule, it is important not to interrupt or talk over each other. Surely, most have had plenty of time to do that prior to mediation and it clearly hasn’t worked out well for them so far. You must accept that you are going to hear things you disagree with plenty of times during a mediation session. Rather than voicing your opinion on the matter, you can quietly take notes of things you’d like to address when the other party is finished speaking. Everyone can have a chance to speak at mediation while everyone else listens quietly.
When you speak to the other party in mediation, it is much more helpful to steer clear of personal insults, blame, and unnecessary remarks. They only serve to frustrate the process because everyone becomes more hostile and defensive. Again, you have had plenty of time to argue and sling mud at each other prior to mediation, and if you didn’t before—now is not the time to start. This is the time to focus on facts everyone can agree on, respectfully debate ones they disagree on, and generate thoughtful ideas for settlement. Sometimes the entire circumstance is awful and there’s really not much to be happy about for anyone. But, if the parties focus on getting it done and moving forward as quickly as possible, it is much more beneficial for all involved.
When parties come to mediation they are often under a lot of stress, which can make them perceive things a little differently. For example, when the mediator comes to one party privately to convey some arguments the other party has made regarding a previous offer, it is not uncommon for parties to become suspicious that the mediator is trying to favor the other party. This is not what the mediator is trying to do. The beauty of mediation is that everyone is in charge of their own disputes. The mediator has no stake in the game so to speak, as they are not personally attached to the issues being disputed, and they are not making any decisions regarding the facts of a dispute. The mediator is trying to help you all come together, not to help any particular side. Please be as open as possible with the mediator about details, as they can always be kept from the other party if you wish. Disclosing things to the mediator can also help them shape what kinds of things can be done to bring the parties closer to settlement.
Lastly, it is helpful to be open-minded about the kinds of solutions that you could end up with in mediation. A good mediated agreement is one in which all parties have compromised on some things to get to a place where they can collectively walk away with an agreement. Don’t expect to get everything you ask for. As previously discussed, it may not even be a realistic possibility. Compromise from all parties involved is usually necessary to come up with a sensible solution that the parties can actually execute. Also, don’t be afraid to be open to creative solutions! Sometimes an offer is made that you didn’t see coming, or hadn’t thought about before. Parties can often find mutually satisfactory solutions that maybe weren’t what they pictured when they entered mediation.