Be Fully Prepared: Negotiation Notes and Mediation Minutes

April 1, 2019Insight
Mediation Minute

“You can’t have confidence unless you are prepared.
Failure to prepare is preparing to fail.”

— Coach John Wooden

Once you have developed the facts (who, what, when, where, why and how) and the law pertaining to your dispute or conflict, you need to prepare for your negotiation or mediation. Coach John Wooden stated “You can’t have confidence unless you are prepared. Failure to prepare is preparing to fail.” So with any successful negotiation or mediation, I have seen greater levels of success by lawyers and their clients when it is obvious they have entered the process fully prepared with the facts, the law and supporting documentation or support for their position and proposals.

As mentioned in a prior article, the client must be well prepared for the process of mediation. Key components of their preparation will be: (1) Understand that mediation is a confidential facilitated dialogue in an effort to bring about a settlement of the dispute or lawsuit. The mediator will not be deciding the result of their dispute. Educating the client on the real purpose of mediation is important. They need to understand this is an opportunity to tell their story to the mediator and to participate in a dialogue designed to reach a compromise of the dispute in question. (2) Through a discussion of the matter, prepare the client for reasonable, objective and legitimate expectations of the mediation process. Beginning the mediation process with unreasonable and false expectations often causes extra time and disappointment in a reasonable proposed resolution. Demands that would be unlikely even with a win in Court are not productive to the process. (3) Decide whether the case is appropriate for a joint session with the other party, whether there should be a presentation in the joint session or just the mediator explaining the process, or whether based on the accusations, it is best to keep the parties in separate rooms. Careful thought should be given to this aspect of the mediation. It must be weighed against the possibility of offending the other party and make settlement more difficult. (4) While at the mediation will the lawyer do the talking, the client or both? Depending on the client and the circumstances, I have seen the client taking an active and effective role with the mediator. (5) Will the client bring a spouse, family member or close advisor to the mediation and what will be their role? It will be important for the mediator to know these facts. (6) Make sure your client understands the process may take some time. Patient perseverance becomes important in achieving a thorough and successful resolution of the dispute. Have your client and yourself prepared to stay until the mediation concludes or is at a clear impasse and all efforts have been taken to break the impasse. (7) Make sure your client and the lawyer enter the process with an open mind and without a take it or leave it attitude. Often in mediation, a party learns something which justifiably should result in them reevaluating their claim or position. (8) Review with your client the process and clarify or answer any questions they have before heading to the mediation. As a mediator, I send out a Mediation Preparation Guide to help facilitate preparation by the lawyer and his client.

Unfortunately, as a mediator, I have observed a number of situations where some or all of these preparation discussions have not taken place with a client. Once the client discussion has taken place, the attorney needs to reflect on a few key points. First and foremost, an attorney needs to understand this is the client’s case and not the attorney’s case. I have stressed this many times at CLEs on conflict resolution. I have also experienced this challenge in mediations. Professionally and ethically, a lawyer is there to represent the best interest of the client. The role of the lawyer is not to prove they can defeat the other lawyer, to get personal with the other lawyer or focus solely on their fees. In addition, the client should be allowed to communicate with the mediator. It is not productive for a client to tell the mediator “It’s up to my attorney,” “Whatever my attorney says,” or “I have been told my lawyer will do all the talking.” There may be circumstances where this is an appropriate response but, in most cases, it is not productive in reaching a resolution and creates an unproductive barrier between the client and mediator. It can also make the client feel as though they have not participated in the process and thus not comfortable with a proposed resolution.

In conclusion, do not fail to prepare, prepare, prepare for your upcoming negotiation or mediation. Do not just pick up the phone to put forth or respond to demand without being fully prepared, it will definitely affect your success.