How to Get What You Need in Mediation

In mediation, a neutral third party works with the people involved to resolve their dispute. Although the process seems less adversarial than a courtroom, any agreement that you make decides your rights. The process itself can pressure you to agree. You may give away something important if you are not clear about what you want and why you are entitled to it.

Instructions

Difficulty: Moderately Challenging

Things You’ll Need:

• Sufficient uninterrupted time
• A place to gather materials
• A 3-ring notebook or filefolders

1. Put aside your emotional involvement as much as you can. Resolve to try to think rationally about the dispute.
2. Gather all the facts that you need to make a well-informed decision. If the case is about an accident, for example, get as much information as you can about what happened, what the injuries were, and so on.
3. Assemble the evidence for and against your side. In the accident example, you would want pictures of the scene, police reports, etc. Think about what witnesses will say.
4. Learn about the applicable law. Either consult an attorney or do some research yourself
5. Make a list for yourself of the points that really matter. Weed out irrelevant stuff.
6. Decide what outcome you want or need for each issue. Set upper and lower limits for each item and arrange the issues in order of their importance to you. If there is one thing that you absolutely need, make sure it is at the top of the list.
7. Add up the costs of the dispute. How much have you spent so far? How much will it cost you to go to court?
8. Organize these materials in an easy to use form, such as file folders or a notebook
9. Make sure that you understand how the mediation process will work. Listen carefully to the mediator’s explanations and instructions.
10. If you not emotionally able to advocate for your own interests, get someone more assertive to go with you to the mediation. Even if you have an attorney, you may want a friend along to support you.
11. Prepare a concise, logical, statement of your position. Avoid excessive bluster, threats, exaggerations, and falsehoods.

Tips & Warnings

• The same facts and legal points are involved in mediation as in court. The more prepared you are, the more likely you are to get a satisfactory result.
• If you have an attorney, be sure that you and your lawyer are on the same page. Insist that your lawyer help you prepare, including explaining the pro's and con's of your case.
• Before the mediation, write a draft memorandum of what has been agreed to (i.e. assume that you will reach an acceptable agreement and prepare a draft). Some record should be made at the time of any agreement that is reached.
• Negotiation can be exhausting, especially in emotional disputes such as divorces. Don’t allow the mediation to drag on until you are too tired to advance your own interests.
• Some mediators push hard for a settlement. If you feel that you are being unduly pressured, or if the mediator's tactics upset you, end the mediation session.
• Be careful -- anything that you sign may be a binding contract.