I’ve written on the subject of mediation preparation before, here and here. But the longer I think and read about the subject, the more I discover there is to say about it. So, I decided to revisit the subject. Last year, more than 98% of all lawsuits filed in New Jersey settled prior to trial. The statistics in prior years are similar, showing that a very high percentage of NJ lawsuits settle before trial. For this reason, attorneys should prepare for mediation with the same seriousness and discipline they display in preparing for trial since the great majority of cases are resolved before trial during mediation or in settlement negotiations while fewer and fewer cases are tried. Clients should be informed of the unlikelihood of trial and encouraged to participate actively in preparing for mediation.
But how do you prepare for mediation? Attorneys are not trained in mediation strategy or technique, and we are unaccustomed to preparing seriously for mediation. In an effort to understand the actions that would have to be undertaken in any serious effort to prepare for mediation, I suggest the following steps:
1. Ascertain pertinent fact information from client.
2. Determine the client’s underlying needs and interests.
3. Try to figure out what the other side’s interests are.
4. Develop cogent theories that support the client’s underlying interests.
5. Anticipate the counter-arguments that are likely to be made.
6. Determine what basic information and/or documents each party will need.
7. Determine your BATNA (Best Alternative to a Negotiated Agreement).
8. Assess the other party’s BATNA.
9. Evaluate the ZOPA (Zone of Possible Agreement).
10. Devise creative options to satisfy each party’s interests
11. When the alternative to resolution is a judicial or an administrative proceeding, assess the likely outcome of the proceeding.
12. Calculate the monetary and non-monetary transaction costs associated with settlement and non-settlement.
13. Establish specific and reasonable goals for each of the issues to be negotiated.
14. Rehearse your negotiation sessions in advance.
15. Submit a mediation brief.
16. In addition to the mediation brief, it can be helpful for each party to prepare a confidential litigation forecast for the mediator.
17. Think about the independent standards like market rates, scientific criteria, costs or other measures that you could use in your negotiations to persuade the other side.
18. Explain the mediation process to the client.
19. Listen closely to the other party during the mediation.
20.Be prepared to stay until the mediation process is completed and a settlement is reached.
I’m sure there are many more good ideas on preparing for mediation that I omitted from the above list of ideas. But I believe that those who put one or more of the above ideas into practice will come to mediation better prepared to meet the challenges of the negotiation and will be better positioned to achieve client goals.
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