When you go in to a mediation do you have a plan? If not, I think you are making a big mistake. You would never go in to a trial without a plan. Neither should you enter the mediation room without one. Preparation involves knowing your case – who, when, what, where and why of the case and making sure you have all your documentation together and ready to provide to the mediator and other participants if necessary. Having a plan means having a strategy in place as to how you intend to proceed in the mediation itself.
Many participants think this simply means having decided on what your opening offer is going to be with little to no thought as to what happens after that, other than what the final number or range of settlement will be. Proper planning means first giving serious consideration to what your weaknesses are and having an open and candid discussion with your client regarding those problems. It also means considering the other side’s strengths as well as weaknesses. Good planning entails a game plan of what strength or point you intend and at what point in the process. Saving the best for last is not always the best approach, particularly if it is something that the other side may not be aware of and will need some time to adequately assess. One of the more effective mediation presentations I personally witnessed was a lawyer that put forth a different point with each offer, including a final point that tipped the ultimate settlement to her advantage.
Much like preparation I think it is a big mistake to not spend time developing your plan for mediation in advance. Don’t just show up and wing it.
As always, if there are questions please let me know.