Much of the key to a successful mediation lies in focussed preparation: the better prepared you are, the greater the likelihood of reaching an agreement. But preparation of just the facts or the law or a focus on the areas of disagreement isn’t, usually, enough to guarantee success.
Preparation of the legal case is important – not understanding the realistic legal parameters can make it very hard to resolve matters – but as mediation involves parties making compromises in order to reach agreement, being prepared for how to compromise is also vital.
Depending on the matter, preparing for compromise can mean:
- preparing to accept the truism that “all litigation involves risks” and no matter how confident you are in your case, reaching an agreement that eliminates those risks is usually in everyone’s interests;
- being prepared to accept that being “right” about the law isn’t necessarily more important that finding timely closure or preserving ongoing relationships;
- finding time to think about what might be motivating the other party and to prepare for how to address that in a productive, future focussed way; and
- most importantly, it can mean preparing for how to say “yes” when mostly what has been said so far is “no”.
In my experience, thorough preparation takes the most precious of all commodities – time. And it is important to be realistic in allowing enough time for preparation. Like everyone participating in the mediation, I am eager for an agreement to be reached and can be of great assistance in clearing any roadblocks to preparation. If there are preparatory issues that cannot be agreed, please let me know early. Sometimes, a request for information or an explanation about why information is not forthcoming, can be heard and considered differently, if it is delivered by the mediator. For details about my model of managed mediations please click here.
There are three main aspects of preparation which, when done well, mean matters have excellent prospects of success at a mediation. Click here to read more about the 4Ps of preparation.