Mediation is an invaluable tool for resolving legal disputes without the stress, expense, and unpredictability of a traditional courtroom battle. Whether you’re involved in a personal conflict, a business disagreement, or any other type of legal dispute, effective mediation can lead to a mutually satisfactory resolution while preserving relationships and minimizing legal costs. In fact, the benefits of mediation have been so well recognized that many jurisdictions now require or order mediation to occur prior to a case being heard by a judicial officer. In this article we will explore five tips and tricks, that based on our experience, we believe will help you navigate the mediation process.
1. Understand the Difference Between Mediation and Trial/Arbitration
It is a common mistake for parties to enter into mediation with the expectation that the mediator will decide who is right and who is wrong. It is important to understand that unlike a trial or arbitration, the mediator’s role is not to assign fault or determine the outcome. Instead, the mediator’s job is to objectively assess both sides and discuss the strengths and weaknesses of each case in order to explore the possibility of reaching a mutual settlement. Going into mediation with the belief that the mediator will validate your case as flawless is likely to lead to disappointment and an unsuccessful mediation.
2. Discuss the “Gameplan” with Your Attorney
Mediators employ various techniques that they believe will contribute to successful mediation. It is nearly impossible to predict exactly what will happen in mediation due to the differences in each case and each mediator. However, there are basic and fundamental situations that you can prepare for before mediation. For instance, typically a mediator will spend time with each party at the start of the mediation to listen to their account of the case. It is important to discuss with your attorney: 1) who will be speaking, 2) what are the crucial aspects of the case that you want the mediator to know, and 3) whether certain information shared with the mediator during private session must not be disclosed to the opposing party. Depending on the case’s specifics, it may be more important for the mediator to hear the story from the party rather than the attorney. In other situations, there may be a need for the attorney to present the case. These discussions will help both the attorney and the party understand what they need to prepare before the mediation begins. Moreover, having a plan regarding who will be the communicator and the important legal issues will facilitate a more efficient and organized mediation.
3. Have a Meaningful Brainstorming Session About Settlement
Successful mediation involves reaching a fair settlement to resolve a dispute. It’s crucial to have a realistic idea of what you’re willing to accept before entering mediation. Similar to any negotiation, mediation requires understanding each party’s minimum acceptable outcome or “bottom line.” Mediation can be stressful, so it’s important to discuss your ideal and worst-case settlement outside of the mediation process. Having these conversations beforehand allows you to confidently accept or reject settlement terms.
4. Don’t Board Up the Doors on Certain Settlement Terms Too Early
Remember that negotiations are fluid. While it’s important to know what terms are important to you, it’s also crucial to take a step back and consider the overall settlement rather than focusing on a single term. Sometimes, what may seem like a “deal-breaker” could actually lead to a more favorable settlement for your side. Closing the door to certain settlement terms at the start of mediation could prevent meaningful settlement discussions.
5. Prepare the Evidence that Helps Pressure the Other Side
There is no such thing as the “perfect case.” Every mediation will expose the potential downfalls and negative facts associated with your case. The existence of the risks and negative facts combine to create the pressures that are used to come to a reasonable settlement. Therefore, it is important that you understand your legal arguments and what proof is necessary in order to prove these claims. The mediator will have substantially more success if they can point to certain evidence that will be presented that supports your position rather than relying upon verbal arguments themselves. Speak with your attorney about what you need to prove to be successful on your claims. You can then use that knowledge to provide the necessary evidence to assert the most amount of pressure at mediation. The more pressure that is asserted on the other side may result in a more favorable settlement at mediation.
AUTHORS
Jerry Chang, Partner, 3i Law
Jerry P.S. Chang has over twenty years of experience practicing law in Hawaii and is a partner at 3i Law’s Honolulu office. He focuses his practice on employment and labor, civil litigation, alternative dispute resolution, trust and estate planning, and general civil matters.
Jerry counsels employers on best practices to stay in compliance with the ever-changing state and federal employment and labor laws. He also advises clients through the complex decisions faced in potential litigation matters. While litigation may be necessary in certain situations, it is generally a long and expensive process for all parties. Jerry helps parties resolve their conflict through mediation or arbitration by serving as a third-party neutral, and directly representing clients through the alternative dispute resolution process. He is also an arbitrator panel member (Employment and Consumer Panels) for the American Arbitration Association. Jerry has represented clients in settlement negotiations, personal injury matters, union matters, mediation, and arbitration sessions.
Grant Shibao, Attorney, 3i Law
Grant specializes his legal practice in civil litigation and commercial law, catering to businesses and individuals grappling with the intricacies of legal disputes at both the State and Federal levels. His comprehensive practice encompasses guiding clients through matters involving business torts, contract disputes, real estate, and various other civil issues. In addition to his litigation experience, Grant practices sports law. He represents and advises athletes during review by governing bodies of their respective sports and legal actions to preserve and exercise the athlete’s rights.
Grant’s approach to practicing law is rooted in the belief that litigation isn’t a one-size-fits-all endeavor; he collaborates closely with each client to craft a tailored strategy aimed at achieving their unique objectives.
