Part 1 discussed how choosing the right mediator and watching for the right time can improve your chances for a successful construction mediation. Here are additional thoughts on how to increase your odds for a successful mediation.
- Prepare yourself and your mediator. Many mediators ask parties for pre-mediation submissions, but too often parties provide very little information to the mediator. If you have selected the right mediator, he or she will want to try and understand the case background, legal issues, damage claims, etc. before the mediation. Help the mediator be prepared to help you. Give them information on the claims, disputed fact issues, and critical legal issues. Also, prepare yourself for the mediation. Before going to the mediation, parties and their counsel should make sure they have, at a minimum: (a) copies of relevant documents, deposition testimony, and important cases; (b) a strategy for how to approach the mediation, including prioritizing areas where concessions can be made; (c) thoroughly analyzed potential acceptable resolutions and identified potential obstacles that may have to be dealt with; and (d) a reality check conversation between the party and their counsel (see below) to discuss how to maximize the strengths of your case and minimize the weaknesses. Keep in mind that there will not be time to review a large number of documents with the mediator. So proper preparation will allow you to hone in on the key documents and areas of the case that will likely be relevant to the settlement negotiations. Prior to the mediation, parties and counsel should discuss the mediation strategy and potential settlement positions. If the only discussion parties and their counsel have had about the mediation is the location and time, then they’re not prepared.
- Have a reality check conversation. It is rare to find a dispute where the liability and damage issues are so clear-cut that it could be termed a “slam dunk” for one of the parties. Yet, that’s what some clients want to hear from their attorney. And sometimes, any mention by an attorney that there may be a weakness in some part of the case is met with an angry response from clients asking, “whose side are you on?”. If an attorney avoids having tough conversations or tries to sugar coat things for a client because they think that’s what the client wants to hear, then the attorney is doing the client no favors. This approach is the perfect recipe for frustration at mediation because not only will the mediator be telling the client why the other party thinks they should win on some (or most likely all) issues, the mediator may also point out areas of weakness and question how the attorney and client plan to address those issues. No client likes surprises. If the first time a client hears about a potential weakness in a claim or defense is at mediation, then a resolution will be difficult, if not impossible, to achieve. That’s why before mediation, lawyers and clients need to have a honest conversation about the strengths and weaknesses of the case. If a client has hired the right attorney, he or she will have analyzed the strengths and weaknesses of the case and be prepared to have this conversation.