In part one, we looked at ways to establish a value for a monetary dispute and to identify your mediator’s style. Part two dealt with managing your expectations and gave an overview of the mediation process. Part three was devoted to developing a negotiation strategy. In part four, we conclude with drafting a mediation summary, look at what to bring to the mediation session and how to gain and maintain your mediation perspective.)
Drafting a Mediation Summary
In preparing for mediation, you should write a mediation summary and remember who it is for. Although ostensibly for the mediator, in reality it is for your opponent. Unlike a trial brief or an arbitration brief, you are not trying to persuade the neutral. Instead, you are trying to persuade the other side to settle. So, you are better served by not being antagonistic, bombastic, sarcastic, or any of the other –stics!
Rather, you can lay out your strengths and their weaknesses in neutral terms. If your position has any weaknesses already known to the other side, raise them yourself and explain why they are not that important, if you can, or say why they won’t significantly impact the outcome of a trial. Since you are trying to persuade the other party, insist on sharing summaries so they see it. Consider sending an extra copy marked “Client Copy” for an opposing attorney to send to their client. You may even want to bring a copy to mediation and hand it to the opponent to read while you are in a private meeting with the mediator.
So now that you have defined the audience, what do you included in your summary? I recommend keeping it short and only including portions of critical documents and deposition transcripts, highlighting the most important sections of those exhibits. The mediator will trust the other side to point out anything you omitted or stated incorrectly so you don’t need to attach complete copies of an eight-hour deposition; just quote the relevant paragraphs.
Things to Bring With You to Mediation
So what do you bring to the mediation? Here are some suggested items:
- Documents, especially those you excerpted for the mediation summary
- Videos – (In a mediation I conducted, the plaintiff showed a professionally produced video resembling an episode of ABC’s 20/20 instead of making an opening statement. It caused the insurance adjuster to request a copy of the video to show to his superiors so he could get more settlement authority and resulted in a multi-million dollar settlement!)
- Proposed settlement terms with blanks for numbers on a flash drive. (It is a good idea to exchange these settlement terms with the other side in advance to eliminate any last minute hiccups.)
- A computer (with either a portable printer or a flash drive for the mediator to use).
- Food (some mediators fail to order food or take a lunch break during mediation and turn the meeting into an endurance test resembling the Bataan death march. Bringing food to munch on will keep you from settling just to get a bite to eat.)
Gaining (or Regaining) Your Perspective
Finally, acknowledge all you have done to prepare for this mediation. You are ready to negotiate!
Whether you pray, meditate or engage in any other spiritual practices, consider going to the restroom or outside to center yourself in the knowledge you have adequately prepared for this process; you are ready to begin. If you feel yourself being pulled away from center by the antics of your opponent, ask to take a break, return to the restroom or go outside to regain your perspective by realizing their antics are a sign of insecurity about their position or their negotiating ability. If they felt strong in those departments, there would be no need for antics. They would be acting like you!
I hope that by following these steps, you will have a successful mediation experience. Please let me know if it helps you.