How to Prepare for Mediation

By Jeffrey N Fink

1. Take a look at the mediation agreement before the first session so you know what to expect. Feel free to ask questions.


2. Consider what you want to accomplish through mediation and how to present it so you are at your most persuasive. Your goals can be both monetary and non-monetary.


3. Consider whether you have all the information you need to make a decision. If you are considering whether it makes sense to complete limited discovery beforehand, speak with the mediator; he may be able to help both sides come to an agreement that contains the scope, and therefore the cost and time.


4. Start thinking about your "reserve point," the point at which you would walk away. Do not get locked in, though, since creative solutions may come up during the mediation that would address your needs even at a different dollar amount.


5. Consider what will happen if you are not able to agree during the mediation - your so-called "BATNA" (Best Alternative to Negotiated Agreement), "WATNA" (Worst Alternative to Negotiated Agreement) or "MLATNA" (Most Likely Alternative to Negotiated Agreement). Will you leave the decision to a judge? How do the other parties' alternatives differ from yours?


6. Be prepared to discuss the history of attempts to resolve the dispute.


7. Consider which of your buttons the other party pushes. When you get defensive, what are you trying to defend? Similarly, consider which of the other party's buttons you seem to push. Interpersonal friction can be as much of an issue in the corporate context as in a divorce!


8. Let the mediator know how you think the other party will react to your proposals.


9. Consider whether you want to win, or whether you want the other party to lose. If it is the latter, be able to explain it to the mediator.


10. Consider whether you have a personal or business relationship with the other party that would be good to preserve. Will you need to cooperate about anything in the future?


11. Consider how your business will operate, or how your life will look, after the conflict is resolved. What steps are you willing to take to make that happen?


12. Consider who will attend the mediation. If you work for an organization that is involved with the dispute, consider whether you or someone reachable during the mediation has the internal authority to come to an agreement. Discuss it ahead of time with the mediator.


13. The mediator may suggest a brief talk with each of the parties or their counsel beforehand. This conversation gives each side the opportunity to tell the mediator anything they think he should know that they may not want to share with the other side. Consider what you want the mediator to be thinking about in advance.


14. Talk with the mediator ahead of time if you are bringing third-party advisors or family members to the mediation session. He may ask them to sign a confidentiality agreement.


15. Get a good night's sleep.

Jeffrey Fink ( http://www.jfinklawadr.com ) is an attorney in Wellesley, Massachusetts whose practice includes mediation, collaborative law and other approaches to resolving family and business disputes.

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