It is a well-understood aspect of mediation that the process can only succeed if both parties enter it willingly, honestly, and fully intending to cooperate both with the other party and with the process itself.
There is another lesser-known aspect that is essential to the success of mediation and an important yet undervalued reason why some disputes fail to reach an agreement at mediation.
The answer? Preparation.
With mediation being considered an alternative method of dispute resolution – significantly less formal and prescriptive than the strict rules and procedures enforced in a courtroom setting – some parties make the mistake of attending mediation or arbitration underprepared.
Read on for a checklist of essential steps to take to prepare your case before mediation or arbitration properly. By taking the time to prepare in advance – just as you would if the matter were proceeding to litigation – you can dramatically increase the chances of a mutually beneficial and satisfactory resolution being reached during the mediation process.
Understanding the Process
The first step to take to prepare for mediation properly is to have a good understanding of the process that will be followed. While all mediations follow a similar process, there will inevitably be some variations depending on the subject matter and your choice of mediator.
Your mediator may provide you with an outline of the mediation process in advance, or you may find a good summary on the mediator’s website.
This information should include basic information such as where and when the mediation will be held, along with people who will be attending (if one or both parties is a company, how many representatives are permitted to attend?).
You should also know whether private meetings will be held between each party and the mediator before the joint session and whether those meetings will occur on the same day or beforehand.
Otherwise, don’t hesitate to contact the mediator and ask to be provided with a summary of the process that will be followed during your mediation.
This same summary should also be provided to the other party, as the success of the mediation process will ultimately depend on proper preparation by both parties. It is in your best interest to ensure that the other party is as prepared as you are during the process.
Additionally, both parties should agree on the documents that the mediator should have available before the mediation – for example, a copy of a contract or other agreement.
Understanding the Roles of The Mediator and The Parties
The role of the mediator is quite unlike that of a judge or other judicial officer. Rather than giving legal opinion and ultimately deciding the outcome of the matter, the mediator’s role is to guide the parties through the mediation process, ensuring that each party has a chance to be heard and to present their case fully.
The role of the parties is to be fully prepared in advance of the mediation and to come to the process ready, willing, and able to work together to reach a mutually agreeable solution.
Identify the Issues
Before the mediation, make a list of the main issues that you want to discuss during the mediation. While it can be easy to assume that the issues important to you will also be important to the other party – or that they will naturally arise during discussions – this may not always be the case.
By creating a list of the issues, you can also identify why each issue is important to you, and then prioritise the issues.
Next, think about this question from the other party’s point of view, and make a list of the issues that you believe they will raise during the mediation. It can be eye-opening to note how the other party’s list differs from yours, along with issues that may be the same.
Identifying Your Needs, Rights, And Responsibilities
During traditional litigation, it is typically only the rights and responsibilities of parties that are considered and ultimately determined.
Mediation, however, can also consider the needs and wants of both parties, which is one of the primary reasons why mediation often leads to more creative solutions than might otherwise have been ordered in court.
It can be helpful to have an appointment with a commercial lawyer before the mediation to get some advice on your legal rights and responsibilities. Armed with this information, you can then identify your needs and wants.
Ask yourself, aside from what you may legally be entitled to or responsible for, what other issues could come into play that would affect the ultimate resolution? For example, receiving an apology or having the opportunity to be fully heard on a topic may be important to you, and could be factored into an agreement reached during mediation, but are not the type of outcomes normally the subject of a court order.
Identify Your Ideal Outcomes
Imagine that the mediation goes exactly the way you want it to, and you reach the ideal outcome to satisfy all your needs and wants while also being in line with your legal rights and responsibilities. What does that ideal outcome look like?
It can help to take the extra step and draft an agreement that includes the full list of outcomes you desire.
You may never need to show this list to the mediator or the other party, but the exercise of drafting up your ideal agreement can help you to solidify your thoughts and work out your ideal outcome assuming the best-case scenario.
Otherwise, you could potentially have a position where the other party agrees to resolve a point in your favour, but you don’t have the words prepared to explain the exact outcomes you’re seeking.
Consider the Other Party’s Point of View
You’ve already created a list of issues that you believe the other party would want to raise during the mediation; now it’s time to look a little deeper at the other party’s point of view.
Playing devil’s advocate can be extraordinarily helpful when preparing for mediation or arbitration.
Allow yourself to pretend you are the other party and prepare the matter from their point of view. List the strengths and weaknesses of their case, and prioritise the issues in terms of what you believe will be most important to them.
Next, take your list of issues and consider what the other party would have to say about each of them. What arguments would they put forward and what objections would they have to the matters you raise?
This is the best way of determining the weaknesses of your case, allowing you to strengthen your case and reduce the likelihood that you will be caught by surprise during the process.
The Right Frame of Mind
Conflict is difficult for all concerned, and this remains true regardless of the subject matter of the dispute. While it is expected that parties to family law or other personal matter may be emotional or upset about the conflict, there is a prevailing view that those in commercial matters will be emotionally at arm’s length.
This is often not the case. It is perfectly normal to feel angry, frustrated, hurt, or upset about the conflict, as well as nervous or anxious about the mediation process itself, or the possibility of the matter proceeding to court.
Before the commencement of mediation, take the opportunity to consider your feelings and emotions fully. Acknowledge how you’re feeling and understand that your feelings are normal and that the other party is most likely have a similar experience. It is then helpful to define the frame of mind you intend to have as you approach mediation.
It may not always be possible to put your emotions aside, but making a statement – even just to yourself – that you intend to approach the mediation with an open frame of mind, ready and willing to compromise, hear the other party’s point of view, and negotiate on the key issues, can truly be helpful leading up to mediation.
Consider the Alternative
Finally, consider the alternative if an agreement is not reached during mediation. During the initial stages of the dispute, some parties can feel fired up enough to want their “day in court” and may dismiss or underestimate the cost – both financially and in terms of time – of doing so.
It can be a sobering thought to consider the ultimate cost of continuing to litigation if mediation proves unsuccessful, especially when this cost must be weighed against the result you’re seeking, along with the chance that you could lose the court case and end up with nothing, except potentially an order to pay the other party’s legal costs.
When mediation fails, it is generally because of one of the two following reasons:
- One or both of the parties came to the mediation against their will, was uncooperative, dishonest, or otherwise unwilling to participate; or
- One or both of the parties failed to prepare for the mediation in advance adequately.
Do not make the mistake of showing up to mediation unprepared. Agreements reached at mediation are a proper compromise between the positions of both parties and therefore are the best way to encourage a future working relationship – one which is often destroyed by the adversarial nature of litigation.
Mediation is also significantly less expensive and more time efficient than commencing court proceedings.
Give yourself the best chance of success by taking the time to prepare yourself well in advance of the mediation properly.