Preparation is Foundation for Attaining Settlement in Mediation

Let’s face it, we all know better than to go into a negotiation/settlement discussion ready to pick a fight so, why do so many parties still show up unprepared with teeth bared and weapons drawn?  I suppose it goes back to our primitive instinct of “fight-or-flight.”  Executives or high level professionals didn’t reach their positions by being push-overs, so it is likely that if the parties participating in the discussions have not had the opportunity to prepare properly for the conference, we will unconsciously (or consciously!) come ready to do battle.  Of course, on the other hand, there are individuals who, when faced with a threat, simply freeze and cannot respond productively.

Whether you are the participating adversaries in the dispute or the third-party facilitator, preparation for the dispute resolution conference is essential.  Being prepared before entering the dialogue gives the best chance for a positive outcome in mediation.  If given the opportunity to advise participants prior to the mediation, some of my recommendations are:

  • Come organized and ready to clearly and rationally explain your position in an opening statement.
  • Know, as best you can, what your ultimate objectives are.
  • Prepare a list of all issues that may be relevant to the resolution.
  • What are the priorities that are desired to be achieved?
  • Are there items you are immediately able and willing to accommodate?
  • Think carefully about which issues you are prepared to collaborate and/or compromise on.
  • What are the matters you are prepared to fight to protect?
  • Is there something you feel a need to avoid if possible?
  • Do you have contingency options available?
  • Know what the minimum is that you would accept.
  • Come with a focus on settling the case and not on “win or lose.”
  • Think about the worst case outcomes of taking the issues to court and determine these and other actualities if a resolution is not achieved:
    • Whether you are prepared for the public scrutiny and reveal of possible confidential information, trade secrets or “dirty laundry” that arguing in court triggers,
    • If the possible damages both financial and emotional are worth preventing settlement in mediation,
    • Do you have the time to wait for a resolution that can take weeks, months or even years to work through the court system,
    • Are you prepared to fund the potentially significant legal costs to argue the dispute in court, and even take responsibility for the other party’s legal costs if you lose in court,
    • And is the opposing party a person or business you want to attempt to remain on good terms with.

All too often a mediator does not have the “luxury” of reviewing the issues and having an introduction to the disputants before the dispute resolution conference.  In that case, that is where an experienced mediator often has the most important role of all – setting the table for the most productive dialogue and a positive outcome in the opening remarks and especially in the early part of the conference.  Using the above questions (or so many others that experienced negotiators can add to the list) as a backdrop to establish the key issues will be essential in framing the day’s discussions and effecting a positive outcome.

Inflexibility, unrealistic expectations, and lack of preparation are sure-fire ways to prevent a case from settling.  Coming prepared for mediation will limit anxiety, expedites the negotiations, and has been proven to result in a higher chance of a resolution of the dispute.

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