Mediation is a powerful dispute resolution tool. It provides an opportunity to reach a flexible resolution that may not be possible in court or arbitration. However, mediation is not a magic bullet and a successful outcome requires careful preparation. As counsel representing clients in a dispute it is important to be prepared for mediation and make sure your client understands what is involved.
The goal of mediation is to resolve the dispute for all parties. Parties that are only interested in their own pound of flesh will almost always fail to reach an acceptable result. It is also crucial to remember that the mediator is neutral and will not evaluate the merits of your case or decide who is right. It is up to you and your client to present a cogent case and a reasonable settlement proposal.
During the joint session each party makes a brief presentation of their view of the case. This is an important opportunity to set the tone for the discussion and to express a willingness to compromise. During the opening statement it is helpful to provide some background to the dispute, including factual disputes in dispute and any areas of agreement. It is often helpful to support your statements with exhibits such as copies of relevant documents. The presentation should also be low-key and not sound like an opening argument in court.
When you are arguing your side of the story it is important to be respectful and avoid expressing anger or making derogatory statements about the opposing party. The opposition is apt to perceive these types of comments as an attempt to prolong the dispute.
In addition, the opposition will want to see that you are truly interested in settling. If you do not express that interest in your paper the other side will assume that you have no real intention of settling. It is often helpful to state that you are interested in settling the case at the beginning of your paper and to remind the opposition throughout your statement.
Lastly, it is critical that you bring individuals who have full settlement authority to the mediation. This is especially important when dealing with governmental entities. It is not unusual for the government to use a different person on each document and this can cause delays in reaching an agreement.
It is also important to be prepared for long hours and more than one session of mediation. While it is frustrating to sit through a lengthy mediation it is better than wasting time by continuing the litigation and risking losing the case on a claim that might have been settled in mediation. In addition, it is always best to leave the mediation if it becomes obvious that no resolution can be reached. If that happens ask the mediator to recess the mediation and resume at a later date. In some cases this is the only way to avoid the cost of trial.