Michael Lodge, NCPM
Mediation begins by both parties agreeing to mediate. To sit down in joint session, face to face, or now zoom to zoom, and hear each others story and position. The mediator usually gives each side about fifteen minutes, sometimes longer, to give an opening statement. It usually begins with the individual who requested the mediation. The Mediator will take notes, hopefully all parties are taking notes with questions they would like to ask. After you have given your opening statement, the mediator will begin restating what you have said so that everyone understands your opening statement. Then the mediator begins asking questions of both parties and and writing down the most important positions that need to be discussed and negotiated. If you need to talk to the Mediator privately, you may ask to do so, and the discussion will be confidential and only what you ask the mediator to say can be said to the other party. Everything in mediation is confidential, nothing said in mediation can be used in court. After an agreement has been reached, the Mediator will write a Memorandum of Understanding that has everything that was agreed to. You will sign this agreement and it will be given to your attorneys or the court. You now have an agreement that you both have to live by.
How do you prepare for mediation?
1. Focus Only On the Facts Of Your Mediation - stay focused on the issue, do not go off into blaming or pointing of finger, focus on the meat of your issues. Present the issues that are important to you, you may even have a strategy to resolve the issue that you can put on the table for discussion. Take each issue at a time,. Know your facts
2. Be Ready To Put An Offer On the Table - It has been proven that the first individual that puts an offer on the table tends to be happier with the final settlement reached in mediation with the other party. So as you are preparing your opening statements, list on paper your options you would like to present.
3. Do A Reality Check On Your Agenda - I would suggest you consult with an attorney, what would happen if you went to court in litigation? Are your options better in mediation. When you get to mediation factor in the legal advice you got from your attorney into your decisions on the settlement process that you will be discussing.
4. Review The Costs of Litigation - Get a cost estimate of what litigation is going to cost you and then compare it to the cost of mediation.
5. Communicate Clearly In Mediation - Many times parties will let their attorneys, if they decide to use one in mediation, do the opening statement and speak for the client. I as a mediator really like to hear from the party in their own voice. Many times the voice of the party is more powerful then the attorney. Don't be afraid to speak.
6. Know Your Finances - If you are going to commit to an agreement in mediation, and you know you will have to make a payment, make sure you know your finances, be honest about your finances so that the mediation can consider other options. If you can fund it, go to the mediation with proof that you can fund it yourself. Also, make sure you have the authority to make a settlement agreement.
7. Face to Face - remember, you will be face to face with your counterpart in the mediation. Do not be afraid, do not be uncomfortable, just prepare yourself and you will be ok. If you feel you are being intermediated, the Mediator can place you in another room and they can talk you through the process and you tell the mediator what you would like to say.
8. Your Position - As you are preparing for mediation, sit down and write down how you want to present your position. Know your story, know your facts, and do not stray from that. Stay on point. Be prepared.
9. Confidentiality Of The Mediator - All of your discussions with the Mediator will be completely confidential. No conversation can be reveled to the other side. You can confide in your Mediator and you can use the Mediator as a sounding board for your ideas about how to find a settlement.
10. The Mediator - This should have been number one, but find a mediator that has the experience in the issues you may be going into mediation. There are mediators out there that are attorneys, accountants, business owners, engineers, etc. Find a mediator that has the professional background in your area of need. Contractors should find people with construction background, etc. Also remember, Attorneys are not allowed to practice law in mediation. In other words they can't provide you with legal advice in mediation, they can point you in the right direction, but they are not representing either side, they are an impartial individual. If you need legal advice, consult with an attorney.
I hope that helps you understand the process and the needs of mediation. Mediation has a very high success rate of getting parties to the table and resolving conflicts and disputes. Work with a mediator.
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