Suppose you are about to enter a mediation session to resolve a dispute and this is the first time you are going to attend one. Your lawyer may be accompanying you to the mediation or you may be by yourself facing the other side along with the mediator. This may seem daunting but it actually isn’t so because mediation is often described as a non-adversarial process where parties have the chance to work together with the help of the mediator to overcome the dispute. A good mediator will be able to help your side of the story get heard and for your concerns to be addressed while allowing you to also listen to the other side in a constructive manner as well. From there, solutions can be generated to suit the needs of both sides and if an agreement is reached, it can save you and the other side a lot of money and time if the matter were to be heard in a court of law instead.
Nevertheless, it is good to be prepared for the mediation before hand as it does make your side, the other side and the mediator’s job a lot easier. Preparing for mediation is very similar to preparing to negotiate. Whether you are the plaintiff/claimant or defendant/respondent in the dispute, you need to consider all the factors that will result in a successful settlement. Remember these points though. Mediation is not a court of law that determines who is right or wrong. Therefore, when preparing for a mediation, you should consider how your interest will align with that of the other side and be prepared to create options and to give ground when necessary.
Step 1: Prepare an opening statement for the mediator and for the other side to hear – This opening statement is the standard procedure in all mediations. It allows for all sides to hear the version of events from the plaintiff and the defendant and gives an overview to the mediator as to the outline of the situation. The opening statement should generally be simple and straightforward with the facts presented from your case as clearly as possible. If your lawyer is accompanying you for the mediation, he should leave it to you to deliver the opening statement. It should generally be free from any legal jargon to avoid potential confusion as well. Opening statements should be free of as much hostility and angry feelings as well even though emotions may run high. As a rule of thumb, the opening statement should be 5 to 10 minutes long and no longer than that
Step 2: Determine what your interests are and what the other side’s interests in the dispute and how they may coincide – Interests are the motivations behind a particular position that a disputing party takes. For example, a plaintiff may be demanding payment of a certain sum of money for an alleged breach of contract as his position. However, his or her main interest could be other factors such as attempting to restore the reputation or market position of the business due to the contract being breached. It is important to clearly understand your interests as the mediator will likely be interested in knowing what they are at a certain point in time. Determining what the other side’s interest is also important as you will be in a better position to generate options and align your interests together so as to create a suitable settlement.
Step 3: Work out your Best Alternative to a Negotiated Agreement (BATNA) – The BATNA is essentially your walk away line or deal. Instead of having a bottom line, crafting a BATNA will let your determine whether the deal you are offered is a good one that meets your interests or not. A simple example of a BATNA is a scenario where a seller wants to sell a particular item to a buyer for $100. The buyer can take the offer now or try to bargain the price down. However, he realises that he can buy the same item over the Internet for a price of $50. However, the item may not be as good a quality as the one offered by the seller then and there. Therefore, the buyer needs to assess this BATNA carefully and how to possibly improve it or whether it already meets his needs. If it does, then logically speaking, the buyer should then walk away from the deal and purchase it off the Internet or reveal the BATNA to the seller and ask him to match the deal. In this way, he can potentially protect himself from a bad deal in the course of the mediation.
Step 4: Evaluate what you may be prepared to give in order to get what your want – If parties enter into a mediation with good faith and an intention to meet each other half way, 50% of the battle has been won. You may not necessarily have the exact thing that the other side wants at the start of the mediation but if you have something to offer at the very beginning, a good mediator will be able to help you and the other side build on the offer to help “expand the pie” for both sides.
These are the four short and simple steps to prepare for before you enter a mediation to resolve a dispute that you are currently facing and it can work in all manner of situations ranging from business disputes to matrimonial, personal injury, employment or workplace disputes. Lastly, if you have engaged a lawyer, it would be good to engage him or her to help you decide on the strengths and weaknesses of your case