Mediation is something that many seem clueless about, but once they are aware, can use mediation to their advantage in saving major costs, and getting past difficult and stressful situations expeditiously. The process is very informal compared to court, but there are still some things you’ll want to consider and be ready for before mediation to get the most out of your time. This is your “how-to” in preparation and fostering a better environment for discussion and negotiations!

What are the Facts?

First, before you do anything, you must understand the facts and surrounding circumstances of your dispute. This may seem like a “duh!” statement, but so many make it to mediation or even further in court before realizing something important to the case, which is typically a detrimental discovery, rather than a positive one. I often realize when I am relaying to a party facts that are clearly news to them, it often can derail negotiations if the party is unwilling to confront the possibility. It is so easy to assume that your recollection of events is complete, or that the facts you’re aware of are all the relevant information out there. Avoiding this pitfall and doing your due diligence here can be the difference between a successful mediation (and a more satisfactory resolution), or walking into a minefield of potentially troubling revelations. This looks like reading all relevant correspondence, videos, interviewing witnesses, examining records, etc. Whatever is relevant to your situation is important for you to explore, and not just explore the information that benefits you. 

What are the Damages? (How Should I Fix It? / How Should the Other Party Fix It?)

Understanding the situation as wholly as possible allows you to make better negotiation decisions, and think of more creative options for resolution. Whether you are a potential plaintiff or defendant and there are monetary damages possible, it would be wise to prepare a snapshot for yourself of the potential real damages involved. For some claims, parties will calculate the flat rate of potential damages, and then another sum that includes legal costs, potential court penalties (depending on the type of claim), and other sums as appropriate. In California, documents prepared in preparation for mediation or settlement discussions are not discoverable or accessible to the other party unless you voluntarily share them. It helps to know what would more or less make you or the other party “whole” as it applies to the situation, as well as the potential worst or best case scenario for you. This helps foster an informed and realistic attitude towards solving the problem. You are more likely to make wise concessions to resolve the dispute positively and see the value in making certain sacrifices to avoid prolonging problems and uncertainty. 

Mediation Day Prep

But wait, don’t forget to prep the mediator! In certain kinds of cases, a brief conversation or email summarizing events and your position coming into mediation is sufficient to prepare the mediator. In other cases where applicable law, dates, and pieces of evidence are to be discussed, many parties and their attorneys send the mediator a short legal brief discussing relevant facts, attaching relevant evidence, and relaying their position ahead of mediation. Mediators tend to request what they do and don’t want from parties in advance. The goal here is to give the mediator some facts and things to be examined ahead of time so that minimal time during the mediation session is spent this way, making for a more smooth-running session. Making relevant information accessible to the mediator is key in helping them know how to prioritize discussions to focus on resolution. 

During the Mediation Session

During the mediation session itself, it is important to listen to the mediator and the other party. Even if you are represented by an attorney, it is important to be aware of what’s going on and be open to speaking with them about changing the game plan if you see an opportunity for a resolution that you’re agreeable to. If you are representing another person at mediation, remember that you MUST be a legally authorized representative - an attorney, a controlling officer of a business, etc. Again, this seems obvious, but many companies, in particular, tend to send an assistant, HR person, or some other individual who does not have a power of attorney or agency relationship with the party in question. An important note about virtual mediations—please be present with your camera on. This helps the mediator manage the conversation better, know how people are reacting to new information, etc. In addition, part of mediation is being present with the other party. Lastly, in light of all of the above, you must remain realistic about the situation after evaluating it, and consider the unknowns that could be negative if mediation doesn’t work out. This will help lend a perspective that will make for a more productive mediation!