Avoidable Blockades to Successful Mediation
Credit: @estherrj
Although mediation is overall very successful, the reasons it fails versus when it is successful tends to establish patterns of success and failure. Preparing for mediation includes physical preparation as well as mental preparation in order to be able to make decisions from a place of clarity about a situation and with more grounded expectations about what options might be available to the parties.
As observed throughout the years of my experience, one of the main reasons mediation tends to fail is when one or both of the parties do not have a decent understanding of the strengths and weaknesses of their respective cases. They often seem surprised by some of the points made by the other side. It is even common for parties to discover new facts about their case in the middle of a mediation session. Often, these seem like things that could have been discovered ahead of time if they had carefully considered what the other party had said previously or through inquiry to a few key witnesses, documents, etc. Since one new, or previously misunderstood fact can change everything, it would be important to know as much as possible going in. Doing a thorough investigation, and understanding where your case could be both weak and strong should give you a good idea of a range of realistic options for settlement to be productive at mediation. Remember, mediation is somewhat about being willing to make compromises mutually to find a resolution efficiently and avoid further expenses.
On the opposite spectrum of not having an understanding of the issues, strengths and weaknesses, many fail to accept them despite having an understanding! Not wanting to accept that your case has some weaknesses, like most do, will only serve to irritate the other party and be counterproductive to finding resolution at mediation. Understanding that you’re unlikely to get everything you want is an important part of this process—it’s because the alternative is almost always objectively worse.
As part of having an understanding of your case, it is important to identify what it is you’re really asking for coming into mediation. For example, are you looking to have the other party cover a bill? If so, it would be wise to document itemized lists of what is necessary. If getting repairs done, get multiple estimates for the work, not just one. Anticipate that the other party will have questions about the accuracy of any figures you may use for reference or demand and be prepared to back them up! Making strong points in mediation will give you much higher chances of getting the ball rolling on negotiations faster, as making moves like this can establish trust and add validity to the demands you’re making.
Lastly, it is important to be realistic about all of the things that can go wrong after mediation. Perhaps your case won’t go according to plan in some way and doesn’t end up being as strong as you originally anticipated. Maybe the judge or arbitrator disagrees with your view of the case and things go the opposite way than what you expected. Also, despite the fact that you may win at trial or arbitration, that has very little bearing on whether you will ultimately collect any judgment or award, as parties don’t always have the funds the other party is entitled to.
Going into mediation with as clear an understanding of the facts, your strengths and weaknesses is highly important. Also, being realistic and open about potential solutions, and considering all outside variables that could affect you should mediation not work out are all things to be mindful of. Your preparation will ultimately help you get the most valuable resolution from mediation.