Friday, April 17, 2015

Hoping mediation is a success? 

Here’s what to avoid:

Heading to mediation too soon: Early mediation fails because there is so much unknown.

Choosing the wrong mediator: Mediators should have the right style and the right knowledge and experience to handle a case.

Failing to prep the mediator: They need information and should have time to review the case well in advance. That means receiving the information at least 2 days ahead of time. Sending the info one hour before is not enough time.

Using tactics like silly briefs or behaving in a rude manner: Do not rant, do not be aggressive, do not take a condescending tone etc. 

Being too emotional and not focused.  If you have anger or fear issues, the mediator is not a therapist and is not there to offer counseling. Crying during the entire mediation is not helpful. 

Not knowing the opposition: Do what you can to gain insight into the opposing counsel.
I have often had to introduce the 2 attorneys to each other. I've actually settled several cases after the attorneys sat and talked. 

The attorney not preparing the client: The attorney should offer realistic guidance to the client in advance, so he or she knows what to expect and whether or not their desires are “pie in the sky” or a true possibility. Mediators don't like attorneys that promise the clients unrealistic goals and using the mediator to be the "bad guy". 

No having your goals written down before arriving at mediation.  Often people forget everything they want to cover at mediation. The mediator is not a mind reader & can only address the goals you talk about. Bringing up new issues in the last hour usually derails the mediation.

Not bringing required information to the mediation.  It is not the role of the mediator to do your research for you. Often I have to declare a recess and set another mediation because the parties do not bring important information (like the value of the residence, how much is in retirement accounts or the value of the business) to the mediation. I am happy to make copies for the other side so that both sides have the information they need to make informed decisions.

Hiding assets, debts and generally being untruthful.  The mediator is not there to determine who is telling the truth. In order for both sides to make informed knowledgeable decisions, information must be exchanged. 

There are many ways a mediation can go off track, but solid preparation ensures there is a good base from the beginning. 

When everyone is prepared, they come to the table with an attitude more suitable to negotiate and settle the matter.

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