What are the most important steps to take before a successful mediation session?

In addition to selecting the mediator who best fits the type of case and clients who will be in the mediation, it is critical to provide the mediator with the tools s/he will need to conduct the mediation. Facts which come as a surprise to the mediator will prevent their effective use in the mediation. A well-crafted mediation statement, whether provided to the other side or not, will go far in ensuring a successful mediation.

In my experience, everything flows from decisions taken at this stage. There is almost always something to be gained by debating an issue in open forum, at the very least it will help all parties' appreciate the core of the issue causing the dispute. At best, it will of course settle matters. However, my view on the merits of mediation is of no value unless both parties can see the benefit and fully invest themselves in the process. Active listening, a thorough understanding of the dispute, giving an honest assessment of the potential outcomes, and being sensitive to the emotional impact of a long-running dispute are all essential skills. Mediation takes time, money, and emotional investment, but not in comparison to formal litigation.

In my experience preparation is the key. You need to know your case from all aspects. At the same time you must keep an open mind and accept new information and apply to your known facts to see the case as a whole. That way you can objectively assess the strength or weakness of your position and arguments.

Consider if and when early mediation is an option. While the vast number of mediations occur AFTER significant discovery has occurred with the attendant expense, I have found in certain instances the parties may find certain disputes can be resolved even before suit is filed. Experienced trial lawyers who are sensitive to the toll protracted litigation can take on the litigants should be able to identify when an early attempt at settlement is appropriate before positions become hard and fast. I like to float the idea to opposing counsel who I perceive as practical and potential good negotiating partners.

From a Plaintiff's perspective, you need to make sure your client's head is in the game. Be sure to explain how a mediator's role is neutral, but at times may seem adverse to your case. Preparation is key in terms of case law, additional facts, and documents to provide your mediator with the tools they need to advocate for you the best they can.

The selection of a good mediator for your case is critical to the success of your mediation. Mediators are not one size fits all. A good mediator can adapt to changing situations and different personalities. A good mediator is knowledgeable about the laws central to your case. A good mediator must have the ability to empathize with your client (and the opposing parties) and be able to acknowledge the strongpoints of the parties' cases but, at the same time, not hold back on pointing out weaknesses. This requires diplomacy and finesse. Finally, a good mediator is someone who does not (prematurely) give up on efforts to settle your case early in the mediation without allowing the process to take its course.

For personal injury cases, the plaintiff's attorney should have determined the amount of the work comp or medical lien. It should be compromised by that point. The defense should have claims management on standby if additional authority is needed. If there are multiple defendants, a pre-mediation session to determine contribution ranges among all parties, so 4-6 hours are not wasted on that. The plaintiff should be prepped about the aspects of mediation. All coverage issues should be ironed out before the mediation so there is no waste of precious time. Each side should retain a structured settlement consultant on large cases to provide alternate resolution options versus a lump sum settlement. The plaintiff should be present.

One of the most important decisions one can make is the selection of a mediator who is knowledgeable, credentialed and charismatic. Clients when pressed into difficult situations will undoubtedly begin to question their counsel and counsel's willingness to zealously advocate for their position. When all else fails, the credibility and the credentials of the mediator are necessary to persuade the parties that their strongly held views and expectations may not prevail in the real world of disputes. If the mediator you choose cannot make a difference in the success or failure of the mediation process then the question becomes why were the attorneys unable to resolve the matter prior to the mediation.

To maximize your chances of success at mediation, thoughtfully select a mediator. Not every mediator is appropriate for every case. In my experience, a mediator's demeanor and skills are as important as subject matter expertise.

Remember that the mediator should not be an expert. They are skilled at breaking deadlock and the subject matter expertise should come from the parties as the mediator does not give advice or impose a judgment.

In my experience preparing yourself might be reframed as preparing your side. Managing your client’s expectations is a vastly overlooked necessity. Where mediations I have been involved with have foundered they fail before they begin because a party has unreasonable expectations. Getting to yes is more about filling needs rather than wishes. Identifying what each side needs for a result is what gets cases resolved.

Have a read of Dana Castersen's excellent text Challenging Conversations for some practical steps to take in framing a good and constructive discussion.

Preparation is key, especially when mediation has been court-ordered. Unfortunately, in child custody cases, the parties are often forced into mediation almost immediately, and this can lead to resentment, not only of the other parent but of the whole process. As attorneys, we need to prepare our clients both for the mental and emotional aspects of mediation and for the need your client to consider their "bottom line" or "line in the sand" before they attend any mediation sessions. If we go over the various topics and discuss those things before our client attends mediation, the mediation is more likely to be successful.

Preparation is essential in all aspects of litigation and serves multiple purposes for mediation. A cogent and organized memorandum not only assists the mediator in understanding issues, but - should the mediation not resolve all issues - also helps the trial lawyer in case preparation. Additionally, an attorney, well prepared for mediation, will view the case from the adverse party's perspective and be able to objectively assess the strengths (and weaknesses) of their client's positions. This is an essential step in developing your alternatives to a mediated agreement (BATNA, BATMA, WATNA, etc.). Such, as Fisher and Ury note in "Getting to Yes" is "the standard against which any proposed agreement should be measured."

You should be very well prepared and know the facts and the law relating to your case and be prepared to answer tough questions from the mediator. It is important to spend the time necessary to prepare a strong mediation statement to be sent to the mediator in advance. It is important to prepare your client by making sure the client understands the mediation process and the role of the mediator. You should know the weaknesses in your case - not just the strengths. It is important to discuss the potential weaknesses of your case with your client in advance of the mediation session. Both the advocate and the client need to come to the mediation session with realistic expectations.

Being clear on all the issues want to address is important. I have seen mediations derailed because a "forgotten" agenda item was not raised until everything else was resolved. The new item was the deal breaker that sent the parties back to the drawing board. Have the list of issues but be ready to be flexible about the order in which they are dealt with.

The list of issues is something that can be done with the mediator but worth thinking about priorities beforehand. Which are the really important issues for you and which are simply desirable demands but not essential. Can you put your list in order or priority which can help focus negotiations.

Think about any particular provisions that you are going to want to include in any settlement agreement at the end of the mediation. Consider sharing these with the other party before the mediation to see if agreement can be reached on those matters at least. One of the worst features of a mediation is trying to agree a fiddly tax indemnity clause or a mutual no derogatory comments clause or the terms of a mutual press release late at night after a long mediation session has finally agreed the principal terms of agreement. Trying to find some common ground on the broad shape of any settlement agreement in advance of the mediation can be a very valuable exercise.

Engaging a full service mediation provider can help as the mediation service will organise this all for you. This is only a concern is you are dealing with an individual mediator.

Once mediation has been agreed upon, the parties must agree on logistics. Will the proceeding take place in person or virtually or some hybrid form? How much time, realistically, should be reserved for the mediation? In this regard, err conservatively. A party who requires more "hand holding" should be accommodated, if the mediation is to be successful. Who will be in attendance? If a key stakeholder is absent, the mediation has a low likelihood of reaching a durable (lasting) agreement. Finally, look to the end game. Will the agreement, if reached, be memorialized in a Settlement Agreement drafted at the end of the mediation or will a Memorandum of Understanding, outlining integral settlement terms suffice?

If your mediation is online, this is even more critical. You need to have tested your set up before the mediation. If you have multiple people in one room will the microphone pick up everyone's voice. Will they be tiny blobs on a screen or will the mediator and other parties be able to see everyone's face. I often recommend that if there are more than two people, each person should dial in on their own laptop (or phone) but the sound input and output should only be from one device in the room. That way everyone can be seen but there is no audio feedback.

And bring your curiosity with you. Be prepared to accept that the other party holds a valid point of view. You may not agree with it and you may be certain you are right, but come to the mediation session ready to really listen to what the other party says and prepared to ask curious, open questions of the other party to get a genuine understanding of why they see the situation as they do.

I think it is just as important to prepare your client's mindset to make sure he/she has a good knowledge of the process and realistic expectations.

By agreeing to mediation, the parties have taken an important first step to resolution. The next step, through preparation, is to assess, honestly, their case - pros and cons. Also, assuming the alternative to agreement is a jury trial, is to assess the venue and the venire. Is the jurisdiction liberal or conservative? What have been verdicts in similar cases? How prepared are you and your opponents for a trial? Finally, these assessments must be viewed in the context of alternatives for which your client has little control over outcome. As a litigator who represented large corporations in a myriad of disputes, I have found that a simple acknowledgment of the other parties' position or damages, can go a long way toward reaching agreement.

One thing I have found extremely important not only as counsel for one of the parties, but as a mediator myself, is setting reasonable expectations for yourself and the client. This means making sure your client understands the mediation process and this it is just that…a process of give and take in order come to common ground with your opponent.

The goal of mediation is to settle the issues. Often, people attempt mediation before both parties are ready mentally to approach a settlement. As a divorce attorney with over 25 years experience, I've found that psychologically, at least one party is not ready for this approach for 6 - 9 months. If your client is hesitant about engaging in mediation, it is more likely to fail. If the parties have to be kept separate during the process, it is more likely to fail. As an attorney, we need to make sure our client is prepared, both mentally and with the knowledge about where they draw the line on certain issues so that they can approach mediation with an attitude of obtaining a fair compromise.

Be creative and flexible in approaches to settlement. Be prepared to pivot. Anticipate the post- settlement issues and tasks that will remain. Have a draft shell settlement agreement ready to go.

Limit the posturing and be honest with the mediator so the mediator can help you settle the case. Be open to creative solutions. I have settled 2 cases where the parties hated each other by getting each side to make a contribution to their opponent's favorite charity. Neither party was willing to pay a dime to the other but they agreed to a settlement where they both could claim victory by making the other side make a charitable contribution. And both got a tax write off as a bonus.

1. Get a handle on what the parties' respective "interests" are as opposed to "positions". 2. Understand your "BATNA" 3.Come in with a flexible mind ready to consider creative solutions 4. Be incredibly prepared to settle- have all your #s, contingencies and Agreements ready to go!

As a lawyer I need to 1.) identify the risks that can be managed 2.) identify information or position points I need to glean from opposing, and MOST importantly, 3.) help my clients set realistic expectations by identifying THEIR big picture and what mediation can do to help us get there. As a mediator, I spend the hours before intentionally shedding the legal hat and other expectations. I practice non-reaction as I prepare our space. And run through the script in my head to set those expectations for the parties and to give consent for them to hold me accountable in that. Mediation magic lies in the safe space.

In addition to preparing yourself, you should prepare the mediator. I find the easiest way to do this is to submit a pre-mediation letter, brief, or memorandum providing case background, stipulated issues, disputed issues, and my clients' positions on the disputed issues. I attach the most critical evidence for the mediator's review. Even if the mediator doesn't review the materials before mediation, it provides the mediator an organized set of reference materials.