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Preparing Your Client for Mediation

Explain the Procedure:

Preparation for every mediation should begin with a clear explanation to your client of the procedure that will unfold:

  1. The process generally involves several parties: your client, the mediator, the opposing party, and, in most circumstances, you and the opposing party’s counsel as well.
  2. Although each mediation is different, and each mediator has his or her own style, mediations typically unfold as a series of meetings at a mutually agreed upon (and typically neutral) location.
  3. The mediation will likely begin with each party presenting their case as an opening statement, later proceeding through a problem-solving phase in which the mediator proposes solutions tailored to the parties’ interests and needs. The mediator usually spends part of the mediation in “joint session”, with all parties present, and part of the mediation in separate, confidential meetings called “caucuses” with each party to clarify underlying interests and obstacles.
  4. After these meetings, the mediation will likely conclude with either the drafting and signing of an agreement and “minutes of settlement” or, if no agreement is reached, with the mediator assisting the parties in narrowing the issues in dispute.

Discuss Key Points:

In addition to outlining this process, prior to mediation, you and your client should discuss a number of key points to ensure the best possible outcome:

  1. Ensure that your client understands the mediator’s role. Specifically, the mediator has no authority to impose a solution and is not there to ensure that a settlement is favourable, or that a settlement is reached at all. The mediator’s tasks include controlling the process, identifying and narrowing the issues in dispute, uncovering underlying interests, and generating various options for resolution. Your client should understand that, unless indicated otherwise, the information they provide to the mediator is confidential, and that this sharing of information will help to ensure that the mediator understands your client’s position.
  2.  Your client should have a clear sense of the co-operative nature of mediation, and how it differs from both litigation and arbitration. Your client should understand how their rights, options, potential costs and timelines differ in mediation versus litigation. In fact, a discussion of these factors will help to ensure that your client enters mediation with a realistic “BATNA” (Best Alternative to a Negotiated Agreement) in mind.
  3. Your client should understand that the benefits of mediation include the preservation of their relationship with the opposing party and, ideally, a mutually beneficial negotiated outcome.
  4. Your client should view the mediation as an active negotiation. As such, you should prepare your client by providing them with a realistic sense of:
    1. the outcomes they might expect in litigation;
    2. the outcomes that they hope to achieve in mediation;
    3. the outcomes the opposing party will likely seek;
    4. the points on which they are flexible; and
    5. the points on which the opposing party is likely to be inflexible.
  5. Assist your client in determining which information to disclose in opening statements, in joint session with the opposing party, and in caucus with the mediator. If your client has a strong case, you will want to ensure that the opposing party is aware of this reality. The more prepared your client is for the different stages of the mediation, the more likely they will be to complete the process with a settlement agreement that meets their needs.

Over time, this blog will cover everything you need to know about both mediation and arbitration. I hope you’ll find this blog informative. For additional information visit www.barryarbus.com.

Next time:

The next installment in this blog will focus on confidentiality in mediation.