6 Essential Steps to Take When Preparing For a Mediation
If you’ve been advised to mediate your dispute or you and your opponent have decided that this would be the best way forward, you’re probably wondering what it will involve. Mediation is an alternative way of resolving a dispute and you may be using this procedure, as well as litigation or negotiations, as the conflict develops.
There are several benefits to using mediation. One thing is for sure, it is not as formal as court proceedings and so it may feel less intimidating. It will involve the intervention of a neutral third party (the mediator) who will encourage a dialogue between the parties with the aim of resolving the dispute. The outcome is often a written settlement agreement which both parties create by exploring their mutual interest and needs and moving away from their positions which prevented them from resolving their dispute by themselves. The mediator acts as a negotiation coach who facilitates the exchange of information and ideally, builds trust between the parties in such a way that even the emotional elements of the conflict can be satisfied.
Any mediation can be daunting but there are ways to prepare for it so that it goes as smoothly as possible. It won’t guarantee a successful outcome but it will help you get the most out of this valuable conflict resolution tool.
5 Essential Steps
Understand the Role of the Mediator. You can do this by asking them about it. Mediators welcome questions about the procedure, the main stages of mediation and in general, how they will work with you. They should also explain to you about confidentiality and what that means in the context of mediation. Anything that you say to a mediator is confidential unless you expressly confirm that it can be disclosed to the other side. Both parties must also agree that the contents of the mediation will be treated as confidential to anybody not party to the mediation.
What are key points of the case? Before you mediate, make a list of the key points in the dispute which need to be addressed. If you are seeking reimbursement of amounts paid under a contract because your counter-party did not complete a specific task properly, you need to think about (1) what the contract says about it, looking at particularly clauses in that contract; (2) what the exact task was; (3) what you mean when you say that it was not performed adequately and how you think it should have been performed; (4) what effect did that have on you; (5) the amount of money you are claiming and why that amount is appropriate.
What are your underlying interests and needs? Make a list of the interests underlying the key points of the case. If you are claiming money, is that because you are having a tough time with cash flow? Has this impacted on your reputation, your ability to perform another contract or has it damaged other relationships? Money is of course, one way of satisfying a need but ask yourself how satisfactory this is? Could an apology suffice, especially if you feel humiliated or disrespected. Could you offer an apology? It’s also important to think about future interests and other people that may be impacted by this dispute and the resolution.
What information will you disclose? Some information is too sensitive to disclose. You can always discuss this with the mediator with the warning that they must not discuss it with the counter-party. However, think about what information would help to change the perception of the other side and bring them closer to agreeing a settlement. If one aspect of your dispute is the value of an asset, perhaps you could disclose the relevant section of a survey report to support your settlement offer. Thinking about information as a tool for softening the other side’s position is a good way to go about negotiation. The same applies to the receipt of information. You can always ask your mediator what they think about a particular document and how it would be best to present it the other side. If they think it could antagonize or insult, they may warn you!
What happens if you don’t reach a settlement agreement? Often referred to as your BATNA (best alternative to a negotiated agreement), think about what you will do if you don’t manage to agree a resolution. Will you continue or start legal proceedings? That will depend on the costs, the documents available and the strength of your legal position. Some academics believe that knowing what your BATNA is gives you more power and confidence during negotiations. Whilst this may be true, bear in mind that your opponent may have already worked this out and could use this against you. You might also want to think about your opponents’ BATNA.
Work out your opponent’s strengths, weaknesses, needs and interests. Like you, your opponent has things to lose and gain from allowing a conflict to continue. It could damage their reputation. They could be in financial difficulties which would worsen with mounting legal costs. They could however, be in a very strong financial position with innovative business partners but they need your key skills or knowledge to develop a new product. Knowing this before you go into the mediation will help you feel confident in your strategy and the direction the conversation could go in.
It’s normal to feel nervous when you do not know what will happen. You may also feel extremely angry, hurt or disappointed because of an aspect of the conflict. It’s not unusual for a mediator to get to know both parties and their feelings about the conflict before jumping straight to the figures. Sometimes parties just want to talk about money but if you feel aggrieved, it’s your opportunity to satisfy your emotional needs with the mediator as well as the more pragmatic elements of the claim.
A settlement is never guaranteed but preparing for your mediation will help you to communicate effectively and to get the most out of the conflict. It relies not only on the skill of the mediator but also on your mutual willingness to move towards each other in a flexible and creative way.
Let me know what you think!