When preparing for mediation or when involved in conflict in general, it is important to have an understanding of the facts surrounding the issues—or at the very least, the ones you can reasonably investigate yourself or through your attorney. This seems obvious, but being thorough is vitally important! This will help you make good decisions for yourself and help you avoid unnecessary expenses. 

Several times in my career, I have realized in the middle of mediation that one or more parties may be operating on a mistaken belief in the circumstances of their dispute, or that a solution to the parties’ problems may already exist in a document, a picture, email, or insurance policy, among other things. Certainly, realizations of that kind are better to have at mediation than to be brought up in trial, but hopefully some of these things can be avoided with the right mindset beforehand. 

The “facts” one relies upon when making critical decisions typically only help when they turn out to be true. Too often, people are not thorough enough when verifying things themselves. While this seems obvious, it is easy to miss things when you are under stress, emotionally involved, etc. It is important, then, that you have extensive conversations with witnesses—not just ask them questions that favor your theory of what has transpired or what seems reasonably obvious to you. Let witnesses talk somewhat freely and see what comes up; they may know something that you haven’t thought to ask until they say something that sparks your interest. Sometimes people know things that are of consequence, but don’t quite fit into the narrative that you’ve developed based on what you know so far. You have to be open to hearing adverse or alternative information, too, as it could change your whole course of action. You really can’t afford to miss information that was there from the start! 

Also, it is very important to keep in mind that not everyone is an honest witness. Ascertain whether that person may know more than they are letting on, or whether they might have a reason to be dishonest with you! On many occasions, I have had a party rely on information that came directly from a person (perhaps not central to the current dispute) who may very well have been responsible for all or part of the issues surrounding the dispute. People are quick to believe that some parties are lying to them, but sometimes fail to see that:

a) That may not entirely be the case; and 

b) There may be other parties that require their skepticism. 

Nobody wants to realize that the opposing party might be right about something at a late stage. 

When it comes to documents, make sure you look for anything that can help you, but also anything that could conflict with your position. You need to possess and take into account both types of documents. You don’t know from the outset how important something small can be until that moment arrives. Also, reviewing documents carefully can clue you in on other things to look for in your search for truth and guidance on how best to proceed in your situation. 

You may also discover that there is an insurance policy that can address the issue, in whole or in part. That can make a huge difference in getting a dispute resolved. Some people are unaware they can make certain insurance claims after the fact in some cases, which causes them not to consider this possibility from the start. 

All kinds of things come up in mediation that could have been helpful to know a little sooner. This seems to be because mediation is usually the first time the parties are having an open and productive discussion about how to address the issues. Regardless, once you have ensured you have the clearest understanding possible of the issues and how you are affected by them, you are in a much better position to make good decisions for yourself. 

Be patient, be thorough, be open-minded and you’ll be prepared!