Do you have an upcoming Mediation to prepare for? Here’s everything you need to know!
Skip the courtroom drama. Who needs subpoenas, juries, and witnesses?!
Mediation lets you hammer out a deal on your terms—fast, private, and far cheaper than trial. Also, before you go to trial, the Court will almost certainly require you to attempt Mediation first, so you might as well take advantage while you’re there.
Here’s what to expect and 10 simple steps to make it work for you.
Choosing the mediator
Sometimes the parties agree on a private mediator; other times the court signs an “Order of Referral” that names the Mediator or directs you to a dispute-resolution center in your community. Either way, the Mediator must be a neutral third-party with no interest in the case.
If you’re choosing a Mediator, choose someone who has a reputation for listening, but who can also be tough if one side (even if it is you) can be a little hard headed. Sometimes it helps to have a neutral party tell you that you’re being stubborn.
An important thing to know is that the Mediator has no power to decide the case—only to help you reach your own agreement. The Mediator’s job is to help the parties reach an agreement by keeping the conversation moving.
Confidentiality rules
Everything said in mediation is privileged. These are settlement discussions, and the rules of evidence prevent settlement offers from being used at trial. Depending on your state, there are also likely specific laws that prevent anyone from testifying about what was discussed at Mediation.
Those rules allow candid discussion of weaknesses, risk, and creative solutions without fear a stray remark will haunt you in court.
So, when you’re mediating, take a step back from your trial position and take a hard look at your own case, warts and all. The confidentiality of mediation gives you a chance to offer some concessions that won’t be held against you at trial.
Pre-mediation homework
Your attorney will prepare a confidential position letter for the mediator outlining the facts, claims, defenses, and prior offers. You should:
Gather key documents (contracts, emails, financials, photos).
Identify your “needs” versus your “wants.”
Decide your realistic settlement range and the authority you will bring to sign.
Block off the entire day—successful mediations often run past business hours.
Some of my most successful Mediations were because I prepared like I was going to trial with a binder of Exhibits for the Mediator to reference during their discussions with the other side.
Also, it helps when the other side realizes that their attorney was out-done by your attorney because they’ll then wonder just how prepared they will be when it comes time to go to trial.
The opening joint session
Most mediators begin with everyone in the same room. But, if it is a family law case with a history of D.V. or intimidation, then there likely won’t be a joint session.
In this joint session, the mediator explains the ground rules, then each side gives a short opening statement. This is not a closing argument—keep it professional, factual, and forward-looking. The goal is to frame the dispute and show you are prepared, reasonable, and willing to negotiate.
Honestly, I like to use this time to speak with all of the PARTIES to explain that us attorneys get paid to talk, and that there will be plenty of time for us to talk if we go to court, but that right now is the time for them to talk to each other. I tell them that us attorneys will be quiet and take notes while they do their best to work things out.
Then, if they reach an agreement, then us attorneys, as officers of the court, have a duty to draft the Agreed Order or Settlement Agreement in a manner that ensures everyone gets what they bargained for.
Surprisingly, when you get the attorneys to just shut up, and get parties to actually sit down in the same room during this joint session to just talk to each other, a lot can get accomplished in a short amount of time.
Private caucuses
If the opening joint session isn’t fruitful, then you and your attorney move to a separate room and the other side does the same. From there, mediation becomes “shuttle diplomacy.” The mediator carries offers and counter-offers back-and-forth…
How to WIN your case at Mediation: The Complete Guide
Chapters:
00:00 – Prepare for Mediation
00:24 – Choosing the Mediator
01:07 – Confidentiality Rules
01:45 – Pre-mediation Homework
02:33 – The Opening Joint Session
03:43 – Private Caucuses
04:19 – Negotiation Dynamics
04:54 – Deciding whether to settle
05:30 – The Mediated Settlement Agreement (MSA)
06:37 – Buyers Remorse
07:03 – Practical tips for Participants
07:32 – Bonus Tips
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Music:
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Good presentation. As a trial attorney, I normally do not like to mediate, preferring to go to trial. But, there are times when Mediation can be useful. I am often discouraged by the lack of good mediators. Unlike what you describe, I’ve been in front of too many mediators who simply ask the parties what they want, and then go and forth between offers without taking the time to get to know the parties, or help them find common ground. I often have to suggest to the mediator how they should be conducting the mediation.
This was an excellent presentation on mediation, It can be used by the litigants, but is also useful for mediators. You did an excellent job explaining the process as well as providing excellent strategies that mediators can use.
This video really touched me. It’s been a week since I lost the person I love, and I’m still hurting. I know my mistakes caused it, and I take full accountability. What we had was special, and the future we dreamed about meant so much to me. I’m ready to fight for it and fix what I broke I just wish I knew what else I could do.
What if you are self representing?. With a medical disabilities leave
What a non-sensical concept; ‘winning at mediation’ , yes to ‘successful in mediation’; ‘best outcomes for mediation’, remember we are talking about mutually agreed outcomes, not winning ….
Excellent video. Thanks a lot.
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Can someone explain if it’s right for a JAMS case manager to have a claimant send all files to the other party before arbitration has even been accepted?
That’s what happened in my case. If this isn’t normal, I’d really appreciate insight or legal perspective
How much do mediators take from the total?
Good advice, try to settle administratively 1st. Stay in honor!
Great advice @MatthewHarrisLawPLLC
Thank you!