Preparing for Success and Greater Satisfaction in Mediation
Credit: @kim_379
Let’s face it, the circumstances that bring most people to a mediator are not necessarily happy ones, simple ones or easy to resolve. Nobody is really calling me on their best day ever. However, mediation can still help prevent further damage, repair some that has been done, and serve as a much more appealing option to the drastic and costly alternatives—all of which come with their own issues. While it is not like going to court, preparing for mediation is something that should be taken seriously. Otherwise, you are potentially wasting more time and money on something that is meant to help you save massive future costs! This is all about how and why different types of preparation are important.
First, you or your attorney need to have a solid grasp on the facts. A timeline of events, photographs, records, witness statements, running totals for medical bills or other potential damages whether you are making the demand or defending it. These are all things the one must:
A. Have knowledge of;
B. Find, assess, or hire professionals to find/assess; and
C. Understand how all of the things they’ve discovered in that process adjust their demands, defenses, etc. prior to walking into mediation.
Many parties or their attorneys walk into mediation ill-prepared in the way that they do not know the total of damages to date, may be unaware of crucial facts and may not have not considered thoughtfully how anything new possibly coming out may affect their position. Not only could this cause one or both parties to not get the most out of mediation, but a party who does not have a realistic understanding of their situation is more likely to dig their heels in unnecessarily and cause mediation to fail.
If you do take those forms of preparation into consideration, that should also help prepare you for setting realistic expectations in settlement types and ranges if money is the issue in question. Many people go into mediation with a bottom line, but some also consider a range. There are many ways to do this, but one way I find most effective is to take what you think your case is reasonably worth settling for, after taking some considerable concessions and make that number the middle of your range. The high end should be what you would ideally like to settle for if things went mostly your way, and the low end should be a number that would be very, very difficult to accept, but would if you had to confront that other possibilities may not be feasible. It is important to have some flexibility in range, because as previously mentioned, surprises can and often do come out in mediation. Sometimes, unfortunately, those new facts can be ones that are harmful to your cause, and in order to both preserve your chances of settling and preventing future harm, you must adjust your expectations accordingly!
Your overall expectations going in are very important, too. Parties are quick to walk away from mediation when they don’t hear what they like. The fact is, you’re not always going to hear what you like at mediation. You and the other party are on the opposite side of a potentially very expensive legal issue. Each of your goals going in is to come out with as little harm as possible, while having differing opinions. You need to learn to be as objective and logical as possible. Involving an excessive amount of emotion to your decision-making in these situations is a recipe for disaster. Most of the time, these issues are unfortunate and inconvenient for everyone, and they are all trying to do the best they can with what they have. Particularly, be mindful of making big gambles or walking away from mediation because you “know” you can win in court and get your attorney’s fees reimbursed. It’s really not a good assumption to make, re: the case and the fees. You likely do not know the other party’s financial situation and many people barely have the funds to settle a case, let alone pick up the tab for the attorney. Also, judgments only mean so much to people who do not have the funds or intend to make it difficult. In this scenario, to collect you need to hire folks who take a 25-50% fee of whatever they can get for you. You really need to take variables like this into account even ahead of mediation. It will help you remain more grounded, because once you consider how things could go, the guaranteed money on the table may look more appealing to you and you may be grateful you took the time to consider it first.
Situations that lead to mediation are tough! However, they can get worse without thoughtfulness. Mediation is a cost-effective way to mitigate damages, save massive amounts of time and take many of the unknowns out of the equation. That being said, in light of all the above, mediation is something that you can get more or less out of depending on your preparation and mindset towards the process and your situation. So, be smart, be thorough and make conscious moves to try to protect yourself from any unnecessary harm!