Which path will you choose?

Mediation Tips

Before Mediation: 

  • Think about why you are going to mediation. What would you like to accomplish? What are your goals? What results would be acceptable to you? 
  • Discuss with your client or attorney the strengths and weaknesses of your case. Brainstorm issues (even outside the lawsuit) that could be resolved with a mediated agreement. 
  • Figure out the important facts and issues to present to the mediator. It is important that the mediator understand what you are requesting  and what solutions would meet your needs 
  • Attorneys should take the time to prepare their clients for mediation. While mediation is more flexible and casual than trial, it is important for everyone at the table to understand what will and will not happen during the process.

  

During Mediation: 

  • Never underestimate the power of respect. 
  • Always mediate in good faith. Once you are open to possibility of a reasonable settlement,  it is much more likely. 
  • Keep in mind that an apology can go a long way.  Anyone can be sorry for how things turned out, it does not change that you may not believe it is your responsibility but it acknowledges something happened to the other side that negatively affects them.
  • You should understand that while the mediator may be a lawyer, they are not acting as either side’s lawyer during mediation. There is no attorney-client relationship and they will not provide legal advice to any party.       
  • Try to present various options to address needs of the other parties and be open-minded about options presented by the other side or the mediator.


After Mediation: 

  • Even if the case did not resolve within mediation, chances are good that mediation placed parties in a better position to negotiate a settlement or to prepare for trial. During mediation did you hear the other side's arguments and positions?  Think about  what issues were important to the other side.  Which issues were they willing to compromise? Which issues did they take a hard line?  You also may want to consider how confident they are in their chance at court.  Did they mention particular case  law or a judge's typical leaning?  
  • Think about whether another mediation session would be helpful.  Additional mediation sessions can resolve cases, especially where the timing wasn't quite right  for the first session.  Do you need additional documentation,  information, or is time necessary prior to any agreement? 
  • Think about whether you are happy with your next step.  If not, continued negotiation may still work.  Did  you (or the other side) get overly emotional at the time things fell apart? Do you think you (or they) have calmed down and it might be worth trying to talk again? Have you changed your thoughts on key issues? 

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