How to Prepare for a Successful Mediation
After 30 years of practicing law, I served as Mayor of Tucson for eight years. In that time I had many opportunities to use the skills I had learned as an attorney to act as a Mediator to solve what looked like intractable problems for parties that thought their differences were irreconcilable: Rio Nuevo, Neighborhood Preservationist and Developers, Democrats and Republicans. The disputes I resolved as Mayor were resolved for the same reasons parties to commercial disputes resolve their problems through mediation. Resolution saves time and money, preserves relationships, and achieves creative and practical solutions not otherwise available in litigation.
I am now available to litigators across our community and state to help resolve commercial disputes, employment disputes, trust or estate disputes, and any complex litigation.
Below are insights on key issues and concerns to address, in advance of mediation, to enhance the likelihood of a successful resolution.
1. Research the Mediator
- What is the mediator’s style and does it work for you?
- How does the Mediator approach impasses?
- You should also ask people who have worked with the mediator about their experience. Over my legal and political career, I have worked with thousands of business owners throughout Pima County and Arizona, solving hundreds of issues.
2. How to Involve the Client
- Involve the decision maker with full authority early in the process, even if this is not the person most knowledgeable of the dispute.
- Determine how important it is for the decision maker to be heard at the mediation.
3. Close the Information Gap
- Use the mediator to promote an efficient exchange of information that does not replace discovery but provides sufficient information to make an informed settlement decision.
4. The Confidential Written Statement to the Mediator
- Always prepare a written statement summarizing your client’s position, counterarguments and rebuttal positions, including nonlegal issues needed to reach a resolution.
5. Be Objective
- It is almost impossible for an advocate to be completely objective in assessing their own case. However, the advocate must provide a responsible benchmark of the legal and business consequences of the litigation to their client.
6. Support Your Legal and Settlement Positions
- The advocate must establish why their current position or proposed settlement position is reasonable both for their client and why it makes sense for the other parties to the mediation.
7. Be Creative
- The client must focus on the underlying interests instead of just their rights, which allow the mediator to use a collaborative approach that creates value to all parties during the mediation. This is possible even in situations of purely monetary exchanges. A successful negotiation must be fluid, and parties should adjust accordingly.
8. Prepare a Draft Settlement Agreement
- At the end of the mediation, the parties enter into a binding term sheet on all key issues, and the advocate who comes with a prepared term sheet will see many of their not previous negotiated terms included.
Advocates who focus on these points are more likely to have a successful mediation in front of me or the other experienced mediators at Mesch Clark Rothschild. Contact me at (520) 624-8886 to discuss the appropriate approach to resolve an impasse in your litigation.