Mediation is increasingly being utilized by companies for early, efficient and faster resolution of disputes. Mediation may occur pre-litigation, during litigation and after appeal. Recognizing the benefits of mediation, many courts now require mandatory mediation. The traditional benefits of mediation such as time and cost savings are widely known. Often more important to companies, however, is the ability to customize a process that best meets their needs and avoid the uncertainties of litigation. Additionally, mediation allows the parties to consider creative solutions not available in litigation.
Preparation is key to the success of any mediation. Whether handling the matter internally or working with outside counsel, spending time to prepare increases productivity in the mediation. All involved must understand how the process works and strategize how to approach the mediation. Identifying goals and outlining a path to achieve those goals while maintaining flexibility will help increase success.
Key considerations include: an analysis of your best-case, worst-case and likely alternative to a negotiated resolution; what negotiation style and strategy will be implemented; who is going to take the lead role; what information will you share—and when—to persuade the other party of the strengths in your argument. It is imperative that you outline the critical issues as well as the strengths and weaknesses of your case and do the same from the other party’s perspective to anticipate their arguments. This will make for rational decision-making. Prepared parties also have greater credibility all around.
Best practice dictates that counsel be prepared to provide key facts and evidentiary support for the claim and those that undermine the opposing party’s claim. Counsel should have available sufficient information so that the mediator and opposing party may objectively understand your position. Effective mediation advocacy requires focusing on information that truly matters but with objectivity. Counsel must be able to acknowledge the strengths in the opposing party’s claim. Anticipating the opposing arguments and facts, being prepared to explain why those facts are not supported or of little consequence, will lead to a greater chance of resolution.
A few other preparation tips include: understanding and sharing with the mediator the relationship between counsel; prior and potential future dealings between the parties; and the personalities of all involved because mediation is not strictly about numbers—it involves emotion too. It is important to share as much information as possible with the mediator in advance. Speaking to the mediator privately in advance is encouraged to save time the day of the mediation. Counsel should build rapport with the mediator and be upfront. This allows the mediator to be more effective. It is almost important to determine whether it will add value to begin in joint session, with mediator opening remarks followed by opening remarks from counsel and/or the parties. Opening remarks are often an opportunity to persuade and speak directly to the other party without having those remarks filtered by counsel. Remarks should be prepared ahead of time, demonstrate a willingness to listen, and be conciliatory consistent with the spirit of mediation. Opening remarks if not carefully crafted can also inflame the situation so careful consideration and preparation is required.
Investing adequate time to prepare for mediation will enhance the likelihood of success. In the event the mediation is not successful, in-house counsel’s preparation time is still well spent because the foundation will be laid from which to build for future negotiations or litigation preparation.
Elizabeth J. Shampnoi is president of Shampnoi Dispute Resolution and Management Services and serves as a mediator, arbitrator, consulting expert and trainer. She works with in-house counsel, law firms, and executives providing strategic advice to develop and implement ADR programs.