When you are participating in mediation, you are inevitably thinking about one of two things: What am I getting or What am I giving. Every once in a while, you might be thinking about both. As a mediator and as an attorney involved in tons of mediations, I have watched parties come into the mediation expecting the world, expecting to give up next to nothing, and occasionally expecting to meet somewhere in the middle. I would never advise a client to accept something they cannot live with, but I do tell clients certain keys that often bring peace of mind heading to the future. The latter expectation is the best, but I think it is rarer than the other two by far. So what should you focus on when participating in a mediation? The following is a brief list of some of the keys I try to get parties or clients to remember:
- Come in with an open mind
- Think creatively
- No case is an open and shut case
- This is one of the best times to decide your own fate
- Think logically, not emotionally
To elaborate on these points, it is never a good idea to come in thinking you will not budge from your position. Don’t be afraid to think outside the box. Just because the other party owes you money, does not mean he has nothing you want that could be of value to you. I tell parties and clients that you never know what the judge had in his coffee that morning. As good as the case seems to you or us, they think their case is just as good (whether they are right or just plain crazy). If the case goes to the judge or jury, you never know what the exact outcome will be. The judge may or may not grant attorney’s fees for instance. If you settle at mediation, you at least know the outcome and you can control it to some degree.
I am often amazed in mediation how both parties come in primarily wanting to blame the other party for what happened originally or for bringing a lawsuit. Frederick Douglass once said “[w]e have to do with the past only as we can make it useful to the present and the future.” He was talking about a much larger issue, but the concept should be the same for mediation. Sure, everyone wants to express their frustrations and mediation can let you do that, but what good does it get you. It only inflames the other side and puts them on the defensive, likely preferring to give up less ground. The real purpose behind mediation is to look at the reality of the situation and if you can be happy with a known outcome then be willing to compromise.
Before agreeing to anything, try to think about the next day and whether you will be happy with what you are giving up or what you are giving away. You can either continue fighting in court or you can have closure immediately after mediation and begin to move on. Never settle for what you are not willing to live with, but look at the alternatives and try to weigh the possibilities. Ask yourself (or your attorney), is this the best deal, can I live with this result, what are the costs if I decide to continue litigation, etc. There is always something to be said for principal, but sometimes it is better to take a deal now you can live with rather than live with nothing if your case fails in the future. Sometimes choosing to move forward with litigation is the right decision. Not every party is willing to truly participate in mediation. The mediator can make a huge difference and so can your attorney. A good attorney will help you to know what to expect, to bring up points and weaknesses the other party has not considered, to help you with alternative solutions, and to advise you of the expectations of moving forward with your case.