mediation preparation

It’s not always easy for two parties involved in a legal suit to come to an agreement. In just about any kind of legal dispute, the two parties have different goals, and neither is willing to budge in the name of compromise. All too often, raw emotions take over, and the entire process comes to a grinding halt.

A mediation is intended to facilitate that process, allowing a neutral third party to ask questions and make suggestions to guide both sides to an agreement that satisfies both of them. For the best results, however, it’s important that both the client and the lawyer are properly prepared. In order to achieve that goal, there are a few important steps to keep in mind leading up to the mediation.

Pick the right mediator

Before you begin, both parties need to agree on a mediator. When searching for a mediator, make sure that you thoroughly research each option. Each state has different qualification requirements. In fact, many states have no requirements for the practice of mediation, but instead offer a roster of mediators who match a set of predetermined qualifications.

As you search for a mediator that both parties can agree on, keep a few questions in mind:

  • How many cases has the candidate mediated, and what type of cases were they?
  • What sort of training does the mediator have?
  • Is the mediator certified in basic mediation? What about specific types of mediation, such as divorce cases?

Making sure that your mediator is qualified and informed will simplify the process in the long run.

Know your facts

Before you go into mediation, it is important that you are fully informed of the circumstances of the case. Before mediation, some facts will be acknowledged by everyone, while others are in dispute. Every fact that is in dispute can weaken your case, so come in prepared to back up your claims with evidence.

Interview witnesses before mediation so that you are prepared for any unexpected answers. Know who any involved expert witnesses will be and what they will say. Going into the mediation and expecting the expert to say one thing can throw your entire case into disarray if they deviate from that expectation.

Be fully aware of local and state laws regarding the circumstances pertaining to your case so that you will be better prepared to negotiate and respond to the other side’s offers. It will make the process run more smoothly, and it will give you a firm foundation on which to base your negotiations.

A large part of an attorney’s job during a mediation is to be the most informed person in the room. This includes the facts of the case, the best interests of their client, and even whether a proposed settlement is feasible. As Christensen Law, a Salt Lake City-based firm, points out, “some mediators will not know whether the settlement agreement is legal or enforceable . . . An attorney can also anticipate any legal or practical difficulties and ensure that [an] agreement avoids those difficulties.”  

Make sure the client is prepared

Before the mediation begins, have a comprehensive discussion with the client about what will happen over the course of the mediation, particularly if this is the first mediation the client has ever been through. Let them know who will be in attendance. Will all of the opposing parties be there in person? Will some be calling in? Will the mediator be serving as a go-between?

The client needs to know how things will work. They need to be prepared to answer a variety of questions. Sometimes, they will receive a first offer that is intentionally low, and they need to know how to respond. Sometimes a session can take all day, or even longer. Sometimes, there will be periods of time where it seems that nothing is happening as they wait for a counteroffer. And sometimes, it is impossible to reach an ideal conclusion for either side. The client should be prepared for all scenarios.

If all goes well, you will be able to reach a final settlement that benefits all parties involved. Sometimes, circumstances are not ideal, though, and a perfect resolution can’t be reached. One of the benefits of mediation, though, is that both parties can work together to find an acceptable middle ground. Sometimes, a creative solution that wouldn’t be possible in a courtroom setting can arise from a mediation, but for that to happen, all parties need to be prepared.


About James Kensington:

James Kensington is a legal consultant at Braxton and Associates. James also works closely with his own network of organizations to ensure their legal pursuits emerge victorious. James writes to inform followings of practical legal advice that can prove valuable to anyone.

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