A Mediator's Perspective
If you know your case, you know the law, and you've spoken with the mediator... How much more effort is really required to prepare for mediation? Beyond drafting your mediation statement, what additional preparations should you make before you arrive at the negotiation table? After all, negotiation is a fluid process, involving multiple people and varied interests and perspectives...
While I agree that the flexibility and customization are integral elements of the mediation process, this does not excuse making time to clarify - specifically - what you want to accomplish in a mediation and why (not to mention considering the perspectives of the other people who will be involved in this discussion).
I've lived on all sides of disputes... as an advocate, as in-house counsel, and now as mediator. So, I have an intimate understanding that when you familiarize yourself with some key techniques for appreciating the dynamics involved, you empower yourself, clarify your priorities (and theirs), and increase the likelihood of a better outcome.
Here are some strategies to consider before you sit down at the negotiation table for your next mediation in order to set yourself up for a productive and successful experience.
INITIAL MEETING WITH THE MEDIATOR
In most cases, parties arrive for negotiation with at least one common goal - to find a solution. At this juncture, it is valuable to leverage that spirit - to build a collaborative dialogue, even if the early wins might feel small (e.g., you find a mutually agreeable date within eight weeks!). It’s also important to make sure you are designing a process that will best address the dispute at hand.
The most important topics to be addressed at this early stage, when you first meet with the mediator, include:
Who: Identifying those individuals with knowledge of the underlying dispute, and those who have the authority to resolve it, is imperative for the mediation to succeed.
What: Parties may have informational needs prior to the mediation. The mediator can serve as a quasi-discovery master in a limited capacity. To the extent there are certain documents that will facilitate the negotiation process, the mediator can work with the parties to determine how and when this exchange can happen in order to increase the potential for reaching a settlement.
Where/when: Will the parties and mediator meet in person or for discussions online? Before 2020, this was rarely considered. Throughout 2020 and much of 2021 and 2022, mediations continue online. As the world opens up, it makes sense to consider the following in weighing this decision: (1) the time and cost involved in travel; (2) impact in-person dialogue might have on increasing (or decreasing) the potential for settlement; (3) cybersecurity concerns; and (4) any technology concerns.
Mediation statements often resemble pre-trial briefs. While this information is helpful, making time to focus on the negotiation aspect of mediation - parties’ interests and goals, ideas on the bargaining process, potential hurdles to settlement - usually lends to a more organized discussion and one that is more fruitful.
Mediators are not looking for a dispositive motion in a mediation statement. Tell us why you need the mediation, what you require of the process, why negotiations between the parties up to this point have not led to settlement.
If some information feels too sensitive to put to paper, then schedule a call to discuss it. You want to give the mediator as much relevant information as possible so they are prepared to help you.
It can also be helpful to prepare a draft settlement agreement, term sheet, or memorandum of understanding in advance, which can be modified throughout the mediation session with an eye toward settlement.
WORK WITH THE MEDIATOR BEFORE YOU GET TO THE NEGOTIATION TABLE
Ideally, this initial exchange is supplemented by subsequent meetings among a party and the mediator in order to dig deeper into the issues presented. If the mediator does not initiate such a meeting, then parties can make such a request. Better to save time on mediation day by speaking with the mediator in advance in order to share sensitive information, particular concerns about the case (or people involved), what worries you, what you need to accomplish, any concerns over the mediation day process, etc.
For example, if not already addressed in the mediation statement, the mediator should be apprised of these concerns in advance of the mediation:
History of the negotiations to date, and why the mediator was required to step in
Explanation of where settlement authority rests (ie, C-suite, board, or the carrier)
Any other related cases that are currently pending
Feelings about starting the meeting with a joint session amongst all involved
DEVELOP A NEGOTIATION PLAN IN ADVANCE OF THE MEDIATION
A negotiation plan should be developed by the individual parties well in advance of the mediation. Planning ahead gives you the opportunity to create a roadmap for the discussion. It is incumbent upon parties to arrive at the mediation with clarity on their goals for the negotiation - along with an appreciation for the other parties’ goals and interests.
Elements of a negotiation plan include:
An outline of your goals for the mediation
Reasons why these things are important
Prioritization of your goals
Repeat the prior three steps, now from the perspectives of other parties involved in the negotiation
Once you have considered these initial steps, you will be informed on the following key aspects of your negotiation strategy:
Do the parties differ in their understanding of key facts and/or terms?
Can you identify areas of agreement - whether big or small?
Does any of this information inform how you might initiate, or anchor, the negotiation exchange?
Are there cultural differences in negotiation/communication style that must be addressed and/or accommodated?
Do any creative settlement options emerge from this exercise?
Are there any ways to exchange value for the parties’ mutual benefit?
This exercise can be accomplished with or without the assistance of the mediator.
EMOTIONAL INTELLIGENCE IN MEDIATION
Understanding whether emotion influences your (or your client’s) decisions throughout this process is important. Even a pure commercial dispute that is “just about money” can trigger anger, frustration, anxiety, and fear in clients and advocates alike. That’s normal human behavior. But the trick is in recognizing it and making sure you are not making decisions from a compromised place.
In outlining what you want from a negotiation, why and in what order, be cognizant of the fact that this process can bring up strong emotions, and ask whether those emotions are a healthy response here.
If you know your case and you know the law, you still need to do some work in order to participate in a productive mediation. While it is a fluid process, including varied perspectives among the parties, it is important to work with the mediator in advance. Prepare submissions that speak to the process as one that’s intended to be a collaborative problem-solving endeavor. And understand your goals, and the other parties’ goals, with as much specificity as possible.
This work goes a long way towards hitting the ground running on game day and putting you on a path towards settlement.