What You Need to Know (and Do) Before Mediation
Preparation is a crucial part for almost anything in life, including mediation. It is important to understand:
- What mediation is and if it is the right method to help resolve your dispute,
- The interests and issues as they relate to the dispute, and
- How to put it all together during the mediation
Along with the Mediation Preparation Worksheet, the below steps will help you be thoroughly prepared for your mediation:
STEP 1: IS MEDIATION RIGHT FOR YOUR DISPUTE?
Before you do anything, you should make sure that mediation is the best method for resolving your dispute. Do some research. Find out if your specific dispute will be best resolved in mediation or through another method. The most used ADR methods include:
- Judicial Settlement Conference
STEP 2: THE MEDIATION PROCESS
Learning about the mediation process and what can be expected will help you better prepare for the mediation as well as help alleviate any uncertainties you might have going into the process.
- Confidential – all participants are held to strict confidentiality for information shared in the mediation
- Voluntary – the parties make the decision to participate in the process (court-mandated mediation is an exception)
- Impartial – the mediator has no power, nor opinion, about who is right or wrong, but is there to help both parties reach their best resolutions through facilitated negotiations
- Self-Determining – the parties have total control over the agreements and decisions made during the process
In mediation you can expect…
- Mediator’s Opening Statement
- Parties’ Opening Statements
- Joint Session(s) and Private Meeting(s)
- Creativity and Flexibility
- To Participate and Work Together
- To Openly Communicate
- Mediator Will Not Provide Advice or Opinions
STEP 3: DETERMINE YOUR DISPUTE
Ask yourself, “What is the dispute about?” Whatever the dispute – write it out in a clear and simple way that defines the situation you are dealing with.
STEP 4: IDENTIFY THE ISSUES
The issues of a dispute are the various topics where the parties are in disagreement or remain to be decided. Identify all the issues that relate to your dispute. In almost every dispute, there is more than one issue, so really think about it.
Then, explain the importance of each issue that you have identified. How does this issue significantly impact you? Are there certain considerations or factors to the issue that hold meaning for you?
After you have identified all the issues that you have and why they are important, now it’s time to think about the issues that the other party may have and why they may be important to them.
STEP 5: DETERMINE THE INTERESTS
What do you want to happen? Yes, you can list all the things that you want and everything that will make you happy at the end of the day. Then, refine it. Ask yourself, “What would be satisfied if I got everything I wanted?” Focus on the motivating factors, not the positions. Do your best to not get stuck on positions but really understand what it is you would like to have happen in order to be satisfied.
Now, do this same thing for the other party. You may not know all their interests but do your best.
STEP 6: CREATE POSSIBLE OPTIONS FOR RESOLUTION
Refer back to the issues that you have previously identified, for both yourself and for the other party, and think of possible options that could be used to help resolve the issue. Be creative.
After completing all this for both your issues, and those of the other party, now go through the different possibilities you came up with and determine if they are viable and realistic options. Ask yourself the following questions:
Is the option possible? Can it be done?
Will the other party agree to this? Does the other party want this too?
What am I willing to accept, even though it may not be exactly what I want?
Would I be able to get what I wanted if I went to court?
Finally, determine what you think the best option(s) is for each issue.
STEP 7: CREATE YOUR BATNA
The best alternative to a negotiated agreement, or BATNA, developed by world-renowned negotiating experts Roger Fisher and William Ury, has become an essential strategic tool for any type of negotiation. Creating your BATNA will allow you to stay more focused on the important factors which during mediation can be easily forgotten. It will be your standard against which any proposed agreement will be compared.
The steps in creating a BATNA include:
- Create a list of actions that you might conceivably take if no agreement is reached,
- Examine the list and choose the most favorable ideas then adapt them into practical alternatives,
- Select the one alternative that seems best
A more detailed example of this process is outlined in the Mediation Preparation Worksheet.
STEP 8: DETERMINE THE DOCUMENTS AND INFORMATION NEEDED
The type of dispute will determine the documentation and information which should be provided to the mediator. The documents and information you provide should be organized and securely submitted to the mediator prior to the mediation session.
As well, this is the time when you should identify if you would like legal representation or other expert advice. It is common to have an attorney available throughout the process to answer legal questions or concerns and review draft and final agreements. The choice of legal representation is yours to make, do what makes you feel most comfortable.
STEP 9: ESTABLISH HOW TO BEST PRESENT YOUR VIEW
Each party will have an opportunity at an introductory session and/or at the first joint mediation session to provide a brief statement concerning their perspective regarding what the dispute is about, the issues and interests involved and what their ideal outcome would include. This presentation should be simple, concise and deal directly with the facts and issues.
Consider if there is information you may want to only disclose to the mediator, rather than to the other party in a joint session.
Be aware of how you are perceived and how your presentation of an issue or interest invites or defies a productive dialogue. To make the most of any mediation you should be able to explain where you are “coming from” as well as be willing to deal with issues and questions raised by the other party.
STEP 10: DEFINE TECHNIQUES TO HELP YOU DURING MEDIATION
During mediation, depending on the type of dispute, emotions and past indiscretions can arise and create difficulties in moving forward with a resolution. Think about how you might feel during the mediation and what, if anything, the other party may do to elicit an unproductive reaction from you. List out some ways that you can deal with these situations if they were to happen.
If there are certain triggers or situations that could impede the mediation, don’t be afraid to privately share these triggers or behaviors with the mediator. Providing the mediator information, such as this, is beneficial to the entire mediation process.
Remember, the mediator works for both parties equally and impartially. Their job is to ensure that both parties get their best outcome. If you communicate your concerns or uncertainties to the mediator, they should be there to help you ensuring that you feel comfortable, able, and secure.
To download or print the 10 Steps for Mediation Preparation, click here.
Mediation Preparation Worksheet – to fill out digitally and save
Mediation Preparation Worksheet – to print out and complete
RESOURCES AND ADDITIONAL SUPPORT
American Bar Association (ABA) has a site where individuals can email questions to attorneys working for pro bono in their state and get free legal answers and advice
Avvo is another site that has legal information and has a section where you can have specific legal questions answered by attorneys that specialize in that field and provides a directory of attorneys
Nolo is a great site that has a wealth of knowledge and information for almost any type of dispute or legal issue. If you create a free account, you are able to edit and download legal documents at no cost. It also has a directory of attorneys that provide services in your area.
Preparation: The Key to Mediation Success by Bennett G. Picker taken from Mediate.com.
Mediation: Ten Rules for Success from Nolo.com
Additional information to help you prepare for mediation:
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