1. Understand the Mediation Process
Mediation is not a trial and should not be approached as one. It requires a different mindset and skill set. Rather than taking an aggressive posture, counsel and clients are often better served by maintaining a calm, respectful, and solution-focused approach. This tone can help create an environment where meaningful discussions are more likely to occur.
2. Gather and Organize Relevant Evidence
Preparation remains critical. A concise and well-organized mediation brief that focuses on the key issues and supporting evidence can be far more effective than a lengthy submission. Where expert evidence is involved, exchanging reports well in advance allows all parties adequate time to review and assess the information.
3. Manage Your Client’s Expectations
Clients should have a clear understanding of how mediation works, the range of possible outcomes, and their role in the process. Discussing both the advantages and limitations of mediation helps set realistic expectations and reduces the risk of frustration during negotiations.
4. Consider the Forum
Mediations may take place in person, online, or in a hybrid format. Each option has practical implications. In-person mediations can encourage engagement and focus, while virtual mediations may offer efficiency and cost savings. Consider which format best suits the parties, the issues, and the dynamics of the dispute.
5. Develop a Clear Strategy
Entering mediation with a defined strategy is essential. This includes identifying the core issues, prioritizing objectives, and understanding where flexibility may exist. A thoughtful plan allows counsel to respond effectively as discussions evolve.
6. Assess Your BATNA
Understanding your Best Alternative to a Negotiated Agreement (BATNA) provides important context for decision-making. Knowing what may happen if the matter does not resolve at mediation can help guide settlement discussions and inform reasonable compromise.
7. Approach the Opening Thoughtfully
Not all mediations require opening statements, and adversarial openings can sometimes undermine progress. Where an opening is appropriate, consider using it to demonstrate that you have reviewed the other side’s materials, understand their concerns, and are attending the mediation with the intention of resolving the dispute.
8. Know Your Audience
Your client is already familiar with your position. Mediation advocacy is primarily directed toward the opposing party and the mediator. Tailoring your communication to your audience can improve clarity and increase the likelihood that your message is received as intended.
9. Use Active Listening
Active listening can be a powerful tool in mediation. When parties feel heard and acknowledged, they are often more willing to consider compromise. Reflecting the other side’s concerns does not require agreement, but it can foster more productive dialogue.
10. Consider Whether an Apology Is Appropriate
Emotional factors frequently play a significant role in disputes. In some cases, a sincere and carefully framed apology can help reduce tension and move the parties closer to resolution. When appropriate, this step should be considered thoughtfully and strategically.
Wallace Smith Mediations
For more information about mediation services and process considerations, we welcome you to get in touch.
