Let's face it: no one is ever reaching out to a mediator on their best day ever. It means there is some sort of issue that is or has the potential to be expensive, time-consuming, and draining on many fronts, including emotionally. Making it to the mediation alone is not adequate preparation for a high chance of success. These are the things you should be thinking about heading into mediation to get started on the right foot and produce the best chances of resolution!

While you may not be thrilled to be there, mediation is a low-risk, high-value (and generally high success rate) opportunity to create a plan that can bring closure to your situation. It is low cost compared to arbitration or litigation. Even when parties choose to be represented by an attorney, successful mediation is a massive money saver. In addition, the time, preparation, and kinds of stress involved in the alternative are often hefty to deal with and really should be avoided if possible. So, taking the time to get prepared and also to get in the right mindset are key to making mediation that much more worth it. 

First, you should prepare by being well aware of the important facts and evidence in your dispute, both positive and negative. I emphasize the latter greatly. So many times I am in mediation and realize the party I’m speaking to is discovering new information in real-time, whether raised by me or the other party. Often, it is very negative, and something the parties should have or could have known if they investigated the situation adequately, and/or if some parties on the same side were fully transparent with each other. This is especially true of lawyer-client relationships, and employer-employee relationships, as well as fiduciary relationships such as agency or trustee, etc. It is vitally important that you are honest with your attorney, especially. Even if you screwed up, the worst thing that can happen is for it to come out as a surprise either during mediation or even worse, at a later stage in the litigation, when you may be under oath, etc. You have to weigh the problems with your case heavily when setting realistic attitudes and settlement parameters. 

Aside from the problems with your case, you also have to consider other outside factors that can affect you if mediation doesn’t work out. This includes issues with the court, such as an unexpected ruling that negatively impacts you. Some things can happen to the other party that can affect you, such as bankruptcy, death, divorce, health issues, etc. These things can greatly impact the pace and effectiveness of any lawsuit, as well as a party’s chances of collecting a judgment. Speaking of judgments, statistically, more than 80% go unpaid! Some people can try to collect the debt for you, but the commission for that hovers near 50%. In addition, publicity concerns, bad press, or criminal prosecution can even be factors you may have to consider when thinking of your interests as an individual or business owner. 

Certainly, this is not meant to terrify anyone. However, it is meant to put into perspective the problems that can arise when mediation doesn’t work out. Also, to highlight the benefit of settling at mediation, or at least attempting it. One important thing to remember is that mediation is confidential. If it doesn’t work out, all of the discussions taking place during mediation remain confidential. Offers and demands can go up or down after mediation. Mediation is the time to put the posturing to the side a bit and get to the heart of what would need to be done for you to walk away from the issue, or otherwise resolve it. Considering all of the problems above with litigation, it makes sense to be open to large concessions to get the deal done. You may be downright angry at the other party, you may feel as though you are right and they are wrong, etc. However, there are more important factors than being “right” or getting back at someone for their previous bad behavior. You need to be doing what is objectively best for your particular situation, even if it doesn’t necessarily make you feel gratified. It is much wiser to learn to take your ego completely out of the situation to avoid going down a road that may feel gratifying for a time but could also land you in debt or without any real resolution in the end. 

When it comes to mediation, you certainly want to be prepared and aware, but think less of being triumphant and more of being smart with your time, money, and energy. It’s always better to be one step closer to moving forward with your life, instead of being stuck in the same messy situations!