Mediation is a process in which opposing parties in a matter sit down with a neutral third party (a mediator) to try to reach an agreement without resorting to trial. Mediation and other methods of “alternative dispute resolution” are becoming more common in many jurisdictions. If you find yourself participating in mediation either by agreement or by order of a court, here are some things that you should consider in preparation:
- Know your case. This one might seem obvious, but there is no shortage of clients who walk into mediations or hearings not fully understanding their cases. Sure, it is your attorney’s job to have a deep understanding of your case, and to help you prepare with that in mind. However, you shouldn’t expect anyone – even your attorney – to understand the intricacies of your case the way that you do.
- Know your documents. Along with knowing the important details of your case, it is also imperative that you know the key documents from the case. This can be especially important in situations where a) the matters at issue are fairly complex, and have generated a substantial amount of evidence or supporting documents, or b) the case has a long history, and with it, numerous pleadings and orders which need to be assessed and understood in order to fully grasp the case. Your attorney should provide a guiding hand in helping you to identify and review the key documents in your case.
- Know your objectives. What is it that you want to achieve in mediation? You should have a very clear sense of this. Often, parties to a case are ordered to mediation even though it is against their preference. In these cases, parties will sometimes participate only grudgingly in the process, not going in with any particular plan or goal, but rather seeing the required mediation merely as a steppingstone to a formal trial. This is usually a mistake. In most cases, mediation can provide a platform for reaching an agreement, no matter how contentious the matter is. Parties often see the situation differently once they are guided by an objective third party (the mediator) in understanding the strengths and weaknesses of their respective cases, the likelihood of success at court, and the probable costs of proceeding to trial. Therefore, you should, at a minimum, have some sense of what you would be willing to agree to if the opportunity arises. Ideally, though, you would want to have a multi-tiered outline showing your ideal outcome, secondary outcome, and least-preferred outcome. While you don’t have to be committed to such an outline (and in many cases you will not be able to, as mediation can take unexpected turns), it can still be a valuable framework through which to proceed in the mediation.
- Know your strategy. You should never go into a mediation without having first thought of a strategy. If you are represented, your attorney should either take the lead on this or help you to develop a comprehensive strategy. Having a strategy in place will provide you with a roadmap in proceeding through the mediation. It will help you frame both your proposals and your responses to the other party’s own offers.
- Know your bending points and your dealbreakers. This is very important. As stated earlier, many people walk into mediation thinking that they’ll “never bend” or that a deal is impossible, given the details of the case or their history with the opposing party. However, this is usually not the best approach to take into mediation. The nature of mediation and the costs of litigation are such that rarely does a mediation occur where some common ground cannot be found. Therefore, you need to know up front what your “best outcome” and “least acceptable outcome” would look like, so you can be prepared to capitalize on any opportunities for settlement.
While there are instances where mediations may be successfully completed without representation, having an attorney to guide you through the process will often prove very helpful.Â
If you have additional questions, or need assistance with your legal matter, contact our office at (317) 514-2681 to schedule a consultation. You can also schedule your own consultation here. We look forward to helping you.Â
NOTE
This article primarily references Indiana law. Please check the laws of your local jurisdiction if you live in another state.
The articles in this blog are for informational purposes only. No attorney-client relationship is established through the publication of these articles.
