Prepare to Mediate

Preparation is Essential to Successful Mediation

The participants should know: 

• The relevant law and facts

• The standard of review 

• How the appeal, its potential outcome, and the litigation itself serve the parties’ larger goals. 

Often, the parties’ needs and interests matter more than the legal issues.

Consider what matters most:

• Moving on and achieving peace of mind

• Financial security

• Avoiding the creation of adverse legal precedent

• Being treated with respect and fairness

The mediator can be most effective when all parties are able to articulate their goals for the mediation.

Consider the other side:

• What does the other party need to reach resolution?

• Are there areas of overlap and things the parties have in common?

• Are there shared business or personal relationships?

• Are there hurt feelings or misunderstandings that can be addressed in mediation?

• Can you imagine a resolution that would meet the needs and interests of all parties to the dispute?

Important issues to consider when planning for mediation

To increase the chances of success, consider:

• Is there additional information that should be exchanged before the mediation?

• Who should attend the mediation?

• Are there people who are not parties to the lawsuit who should participate in the mediation?

• Are there other cases that can be resolved at the mediation.

What will happen if you win or lose the appeal?  

The importance of understanding your alternatives to a settlement.

During the mediation process, each party will often evaluate a proposed settlement agreement by comparing it to the possible outcomes if the case does not settle.

Think about what will happen if:

• You win: Will the case be over, or go back to the trial court? If so, what is the risk, what is the expense?

• You lose: Could your client face bankruptcy?