Tips for Success in Mediation
The information below contains tips and tricks learned over many mediations, both as a litigator and a mediator. The tips and tricks here are general information, not legal advice. Every case is different, and the tips and tricks here are no substitute for an attorney who knows your case.
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Want to learn more about mediation? Check here: About Mediation.
Preparing for Mediation
1 ) Consult an Attorney
The greatest preparation someone can do for mediation is, almost always, consulting an attorney. Lawyers have training and experience that cannot be understated.
2 ) Have Information and Documents Ready
Gather information and documents relevant to your case. It is common for parties to ask questions during mediation, either directly to the other side in a joint session or - more commonly - for the mediator to relay in caucus. Information and even documents are frequently exchanged in mediation. Sometimes proving information or a document can help convince the other side to adjust their position.
3 ) Think Carefully About Your Priorities
Make a list of what is important to you. For example, in a divorce case, time with children may be the most important thing to a party. The mediator should know what matters most to you.
Day of the Mediation
4 ) Show Up
This should go without saying, but show up to the mediation. No one enjoys no-show fees, and there can be additional ramifications in court-ordered mediations. In the event of an emergency, give as much notice as possible.
5 ) Bring Water and Snacks
People do not think straight when they are hungry, thirsty, or tired. Bring plenty of water and snacks. If the mediation is in-person, please try to bring quiet snacks.
6 ) Treat Mediation Like a Court Date
This is a bit of an exaggeration, but only slightly so. If your mediation will involve a joint session, present yourself like you would in court. During mediation, both sides are constantly evaluating whether settlement is better than taking a chance in court. Showing that you can present and conduct yourself well increases the risk to the other side of going to court.
Opening Statements
7 ) Give an Opening Statement
There are situations where it is not worth it to give an opening statement, but too many attorneys and parties undervalue opening statements. For attorneys, an opening statement is the one and only time pre-trial that an opposing represented party will hear you directly. For parties, the opening statement is a chance to be heard and tell your side of things, where the other side will hear from you directly.
8 ) Be Cooperative, Not Combative
Mediation is a voluntary process. Being combative, insulting the other side, or trying to put the other side on the defensive is a good way to ensure the mediation ends early. There are ways to present your side strongly without attacking the other side. Sometimes, giving the other side a reality check is appropriate, but the opening statement probably is not that time. Part of a mediator's job is "reality-checking," so save reality checks for caucus. The opening statement should focus and you and the strength of your case.
9 ) Your Opening is Your Opening, Not a Response
Is your side going first? Then your opening is all about your side. Do not put words in the other side's mouth, and do not try to predict what they will say. They will tell you their side. Is your side going second? Same thing. You should listen to the other side's opening (assuming your mediation is not entirely in caucus), but your opening is your opening. Do not "respond to" or "answer" the other side's opening.
During the Mediation
10 ) Keep an Open Mind
Mediation is not about "winning." It is about avoid having a judge, jury, or arbitrator decide your case. Mediation is an opportunity for both sides to work together and craft a solution that they can both accept. Especially where a case is about more than just money, being flexible and creative can provide a better outcome than a court order.
11 ) Take Breaks
Are you getting hungry? Thirsty? Do you need to use the restroom? Ask for a break! Is the mediator wrapping up your caucus and getting ready to go talk to the other side? Get up, get a drink, use the restroom, move around. If you expect to be gone more than a few minutes, you can give the mediator your contact information. As a general rule, people make worse decisions when they are hungry, thirsty, tired, or have other "urgent business." While it may be tempting to not "waste time," spending five minutes making sure you take care of yourself is better than wasting a full day or more in a hearing or trial you could have avoided (or worse, settling a case on terms you regret later, simply because you were in a hurry).
12 ) Ask for What you Need
Are you by yourself and feeling overwhelmed against someone represented by an attorney? Ask to go to caucus when opening statements are done. Feel like you need a lawyer? Ask to reschedule, so you can get an attorney. Need to consult an accountant? Ask for a break (if you already have an accountant) or to reschedule (if you need to find one). None of this should be abused, and, if you say you need a lawyer, actually try to get one. But talk to your mediator in caucus. Ask for what you need.