The following article first appeared in our Fall, 2014 Mediation Newsletter:
Whether or not you consider a successful mediation to be one necessarily ending in settlement, just a frank exchange between the parties and counsel or an effective case evaluation by the mediator, here are seven ‘secrets’ to help you maximize success at your next mediation:
1. PREPARE YOUR CLIENT
Your clients need to know the “whys” and “whats” of mediation beforehand so that their expectations are managed. Mediation is also more productive if they are introduced to the concept of settlement early on.
2. ENSURE ALL DECISION MAKERS ARE PRESENT
While parties should be present, there may be others in the background who are essential to the decision making process and whose presence might ensure success: i.e., spouses, silent partners, other counsel or trusted advisors.
3. DON’T GET LOST IN TRANSLATION
Treat the mediation as you would treat a discovery or trial. If there is a language barrier then you need to ensure that your client understands what is being said and that others (including the mediator) understand him or her. Bring an interpreter.
4. THERE’S A REASON IT IS CALLED A “BRIEF”
Avoid a ‘kitchen sink’ approach to your mediation brief by focusing on the bare essentials in terms of a summary of facts, issues and the law — as well as which documents are included. Less is usually more. On the subject of briefs, ensure that your client has not only read your brief, but the other side’s as well.
5. BRING THE ENTIRE FILE
What keeps mediation interesting is that you never know what will come up. Therefore, try to have everything at your fingertips, whether in paper or electronic format. As well, if you are seeking costs, a summary of your fees and disbursements is essential (i.e., PC Law ledger).
6. STAY AWHILE
Try to be available for the whole day – even if you have booked only a half-day mediation. Every mediation has a life of its own. Sometimes momentum can suddenly build later than expected and rushing off can derail progress.
7. MINUTES MATTER
Consider bringing draft Minutes of Settlement and a release with you – just in case. It can save time and money. Documents in electronic form on a USB key or laptop are especially handy.
Interested in 7 more secrets of mediation success? Click here.
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