Mediation

Case Preparation

The purpose of a mediation settlement conference is to help disputant parties negotiate and try to work out a solution to their dispute. Often the reason for mediation failure is that parties arrive unprepared. Preparation for mediation is straight forward as it is based around facts and does not require witnesses, evidence or preliminary hearings.

During the opening session the mediator will usually ask each side to make a brief statement on the current position of circumstances. This may consist of the facts of the case and what you want to achieve from the mediation, with emphasis on strengths but not ignoring the weaknesses.

Preparation is of key importance and helps toward effective communication and negotiation. Knowing your case and listing relevant facts will help identify the legal issues for discussion. Be sure to have the necessary information to help evaluate the case  and supply any files or information that might assist the mediator. Details of cost to date and estimated costs of any future litigation should also be on hand.

Parties should enter mediation with a settlement ‘range’ strategy. Knowing your BATNA (best alternative to a negotiated agreement) is important, because it determines the bottom line. If you don’t achieve better than that in the negotiation you have the option to walk away or reopen negotiations. If the proposed agreement is better than your BATNA,  it may be wise to accept the offer.

The aim in a mediation settlement conference is to settle the dispute without further cost. The mediators role is to remain with an open mind, allowing the parties themselves time to decide their own way forward. The mediator should be allowed leeway so he may help develop settlements. This gives both sides the advantage to test offers without having to disclose specific amounts. Each party is responsible for convincing the other side that their settlement position is reasonable, this may make a difference on how quickly the case settles.

All parties attending the mediation (not legal advisors) must have the authority to settle. This means all persons who need to approve settlement.