I’ve recently spoken about doing mediation early on whenever possible. As important as recognizing that you need mediation is understanding that you need to prepare for it. It’s important to have a decent understanding of your situation and the mediation process before you schedule a mediation session in order to get the most out of it. Here are some tips on how to prepare yourself.

Generally, having some knowledge about mediation and a realistic picture of your particular situation are two things you must be prepared to talk about if you are to succeed. First, one must understand that the mediator is not a judge or anything like it. They are a neutral party who is aiming to help you avoid court or further expense and aggravation over the issues that bring you there. The mediator may be brutally honest with you at times, may convey concepts and ideas coming from the other party that you may not like at all, etc. It is important to remember that the mediator’s interest is in trying to help all parties reach a resolution, not favor anyone over the other. In order to help you resolve your differences, they may have to play “devil’s advocate” with you to help you understand that there may be some difficult facts or circumstances surrounding your case, as well as remind you of outside factors that could affect things. It’s important that the mediator discuss such things at times to help the parties make progress in settlement discussions. That being said, how the dispute resolves depends on the parties and what they decide, as the mediator is only there to help evaluate and discuss settlement options with the parties and between them. 

Second, and I cannot emphasize this enough, having more realistic expectations about what happens in court or arbitration can better set people up for success during mediation. In the event mediation doesn’t work out, parties will have to subject themselves to court. This can get extremely expensive and very time-consuming. It could also take months or even years. In addition, many attorneys have found out that things don’t always go according to expectations. Sometimes an unexpected ruling may place you at an evidentiary or other advantages. Opposing parties can also surprise one with new facts that are harmful, can file bankruptcy, or could win the case by default (the other party doesn’t appear to oppose you), but you can’t collect the judgment. Litigation also could involve having to testify and/or be deposed, have to locate and turn over documents and other evidence—and generally a ton of things that are really invasive. Many outside of the legal profession don’t grasp the downsides of litigation very well until it’s too late to save the costs, hassle, etc. Being more realistic about how long, expensive, and cumbersome the process can be should get you in the mindset that mediation is really the place you’d like to resolve your dispute!

So, how do you make a mediation session productive? Most importantly, understand that a successful mediation usually involves compromises from both sides from their original position, sometimes by quite a lot. Some may ask, why not just get everything I want in court? As discussed above, the other party may not have all of that to pay (and a number of other hurdles that can complicate your path to victory), especially in any sort of lump sum. Sometimes mediation is about achieving a certain result in a different manner, creating satisfactory and realistic action steps for both parties to resolve the issues and move forward. Also, when facing the pain of making sacrifices in mediation, it would be helpful to get together a rough idea of the costs to move forward if things don’t work out at the mediation. Not everyone gets attorney fees awarded, and there’s no guarantee of collecting them if the other party has no money or is evasive. Considering time, effort, and other expenses, it may not make sense to move forward if there is any opportunity for a reasonable compromise. This is particularly true for claims with an approximate value below six figures, as attorney’s fees begin to equal or exceed the amount sought very quickly, and with uncertain recovery. 

From a strategic standpoint, you want to know what the other party is likely to argue or present as evidence because those things will be addressed, whether in mediation or by a judge at some later date. Keeping with that, you need to know your case! Know where it is strong and weak, and anticipate the types of arguments and evidence the other side may raise. You should already have some idea of the relevant facts and evidence to look for by the time you are in mediation. It is important to explore and be realistic about potential problems with your case, adjusting your demand/offer accordingly to ensure better outcomes. Leaving fate in the hands of strangers such as a judge, arbitrator or jury is not often appealing!