Litigators often underestimate the power of mediation. Mediation can be incredibly valuable, not only as a tool to settle disputes, but also as a mechanism to assess risk, view evidence from a different perspective, size up your adversary, and get a neutral third party’s insight into the strengths and weaknesses of your case. As a mediator, I frequently see litigators squander the opportunities that mediation presents by making mistakes that can impair chances for settlement and make the mediation process longer and less efficient than it otherwise could be. Learning from these common mistakes can help you better prepare for mediation, avoid derailing settlement, and create the most value for your time.
1. Preparing Insufficiently
Not to sound cliché, but it is true—preparation is the key to success. Prepare for mediation as you would any other hearing. Know your facts inside and out, and be prepared to substantiate your legal and factual positions. The more information you have, the more useful the mediator can be to facilitate a resolution. Many lawyers make the mistake of not having a thorough grasp of the timeline of events, material witnesses, or law relative to an important issue in dispute. They end up spending time during the mediation digging through documents looking for information or making calls to obtain evidence or understand the facts. This is not an efficient use of time or your client’s money. If you confuse the facts or are unable to address your adversary’s arguments, your opponent (and your client) are going to sense weakness. Being well prepared will give your client confidence in your legal capabilities and send a message to your adversary not to underestimate you.