By Christina L. Scott, J.D.
1. An Open Mind
Coming to mediation determined that you will have your way is a recipe for failure! Mediation is a give and take, and both sides cannot have their way on all issues. The underlying spirit of mediation is compromise and at times collaboration and brainstorming, not litigation. Preparing your client ahead of time for this attitude is key.
2. Crucial Documents
Recently I was involved in a mediation where the issue was the amount of special damages; however, the plaintiff’s attorney did not have the most recent medical bills. It was difficult for the defendant to formulate their starting number without the recent bills. This issue was an impediment to resolving the case.
Every case has documents that are critical to the case. Whether the documents are bills, estimates, appraisals, pictures, actuary tables, case law, or emails, bring these documents to the mediation if your intent is to settle the case. At some point during the mediation, I may want to discuss these documents with the other side. They may be helpful in painting the picture you want them to see.
It seems basic, but a calculator is extremely important in nearly all mediation's. Crunching numbers is a must in dividing assets and debts and is equally relevant in injury cases. Most if not all smart phones come with a calculator app, so a calculator is always with you. Use it at mediation to double check the numbers. As the mediator, I am running the numbers as well, but I am relying on you to give me the correct offer you want to make.
4. All Parties in Person
The likelihood of settlement is greatly increased if all relevant parties with settlement authority are present at the mediation session. If the issue involves insurance, it’s a good idea to have the representative from the insurance company (a.k.a. “the adjuster”) in person. At the very least, the client needs to be in attendance via phone or video conference. At key times, during the mediation, it is helpful to me to be able to speak directly to the adjuster or client so that I understand their concerns and can ask questions. Many times, negotiations are smoother and the posture of the parties will change for the better when the person “carrying the purse” is in attendance.