While mediations have the potential to save a lot of time, money and stress, people seem to hate to prepare for them. As a participant or mediator, I have seen countless mediations that are hindered by a lack of preparation.
Often, people say and believe their case will never settle in mediation, usually because the other side is so difficult/stupid/mean, etc. To their surprise, the case usually settles.
About 80-90% of the time, around here, a case settles in mediation. (Keep in mind that in baseball, the greatest hitters connect only 3 times out of 10.)
In spite of all that potential for success in mediation, there seems to be little preparation in many cases.
What can be done to improve the odds of success or get better settlements? Here are some ideas: (Can we say "Preparation" eleven times?)
- Learn about the process. Clients should become familiar with how mediation is practiced in their area. In Texas, we most often use the caucus method with the parties being kept in different rooms and the mediator moving back and forth between rooms. We also have attorneys present in virtually every mediation. Many clients have a lot of anxiety about whether they will be in the same room with their spouse. That stress can be easily avoided. We can make sure we are in separate rooms.
- Identify issues. The issues need to be clearly identified and thought out in advance. We will help you be able to state your positions concisely. Usually it helps to have an extensive discussion about goals so both we and you know what your objectives are.
- Current information. We need to have up-to-date information. That includes the current values and balances on financial records, as well as any records regarding the children. Telling the mediator that you can get certain information later, or that you left the records at home, just won't cut it. The information needs to be present, current and organized.
- Pleadings. We need to make sure the mediator gets the pleadings and any relevant information in advance so that he or she can become somewhat familiar with the facts and issues of the case. That will save valuable time for negotiations while everyone is together.
- Visual exhibits. It's helpful to prepare charts and summaries to help manage voluminous information. Having a computer and spreadsheets can also be helpful.
- Copies. We need to have copies of documents and paperwork regarding your issues for the other side and the mediator. It's usually helpful for everyone to be looking at the same records at the same time.
- Consider your BATNA. Think about the best alternative to a negotiated agreement (BATNA). If you can't reach an agreement in mediation, what is the best realistic outcome for you if you go to court? Is it worth taking the risk?
- Consider your WATNA. It's like the old question, “What's the worst that could happen?”. Think about the worst alternative to a negotiated agreement (WATNA). If you can't reach an agreement in mediation, what is the worst realistic outcome for you? Is it worth taking the risk?
- Plan ahead. Spend time in advance to brainstorm possible solutions that you might propose in negotiations. Bring a number of ideas. You will almost always be surprised by the other side's ideas or proposals, so you need to think about various options for yourself.
- Put yourself in their shoes. Try to anticipate the other party's issues and possible solutions. Plan out how to respond to them. Be prepared to agree to some issues and consider how to try to persuade them to change or trade out on some of the other positions. It often helps to make some concessions to the other side so they can feel like they are winning. Figure out what issues you can fight for and then give in on.
- Keep things in perspective. Focus on the many benefits you can get by settling, especially compared to the cost, time and stress involved in going to trial.
Following these tips should increase your chances of success in mediation and improve the quality of the agreements you can reach. An investment of a small amount of time prior to the mediation can bring big benefits. None of these actions are difficult.