The right mediator and the right process are critical. There is not one mediation style or one mediation process that fits all disputes. One of the greatest benefits of mediation, like other forms of alternative dispute resolution processes, is the mediation event can and should be flexible and specifically tailored by selecting the “right” mediator with the “right” process best suited to resolve your unique dispute. The mediator’s personal style, as well as the mediator’s knowledge, background and experience, are critical factors to consider.
Thorough preparation is essential. Mediation may be the best and last opportunity for negotiating an off ramp that best maximizes the potential for achieving the client’s critical interests. In preparing for the mediation, counsel will consider many issues - here's a rundown.
Some parties believe the Mediation Summary is prepared exclusively for the mediator’s benefit to persuade the mediator. Others prepare these summaries for the purpose of satisfying their clients. Simply because the mediator may be convinced of the merits of a case or defense, or the client is satisfied with the tone and tenor of the Summary, does not mean the Mediation Summary will have accomplished an essential purpose.
Some do not see the benefit of a Joint Session or making an Opening Statement. Significant advantages that can potentially accrue from a short, persuasive, and well-constructed Opening Statement. Of course, there are some disputes and mediations where Joint Sessions and Opening Statements may be counter-productive and these unusual cases should be discussed thoroughly with the mediator prior to the scheduled mediation. However, in most cases the Opening Statement, just like the Mediation Summary, is an excellent vehicle to persuade the opposing party to reconsider its BATNA.
As is true of information in virtually every setting is also true in mediation – information is power. Some believe it is best not to share certain information and exploit this power during the mediation in the “hope” to use that information as a devastating surprise during trial. Experienced litigators know that approximately 98% of all civil cases filed in state and federal court never reach trial. They also know that it is more likely than not that competent opposing counsel will eventually discover or become aware of the “surprise” prior to any trial.
