As alternative dispute resolution (ADR) becomes more the rule than the exception in resolving business, legal, civil, and domestic conflicts, and as more courts require mediation before setting cases for trial, one of the most frequent questions I’m asked by potential clients is, “what should I do to get ready for mediation”. We’re all familiar with the concept of litigation—I’ll hire my attorney, you’ll hire yours, and whoever argues their case best wins. But when it comes to mediation, most people are still a little fuzzy about exactly what to expect and how best to prepare.
Although there are legal aspects to most mediation cases, mediation really is its own thing. As opposed to arbitration, where a person or panel determines the outcome of a dispute, or, litigation, where attorneys or individuals argue their case before a judge or jury, mediation is forum where the disputants (along with a mediator) can openly sort through issues, explore creative solutions, and craft a mutually beneficial agreement. Though attorneys can, and occasionally do, accompany disputants in mediation sessions, it is certainly not necessary. Mediation is not a pre-trial formality intended to exclude the parties from actively participating, nor is it a forum for lawyers to rehearse their arguments. The ultimate goal in mediation is to let the participants voluntarily reach creative agreements, not to haggle and decide who should win or lose.
So, in a process where the outcome relies more on people’s ability to constructively communicate than on who can present the stronger case, some advance thought, preparation and practice is definitely handy.
Here are six things I suggest before mediation, which I’ve seen help clients engage in constructive sessions, and reach great agreements.
1. Contact an experienced mediator
The first thing you should do to start the process of resolving a dispute is…call me! Okay, a mediator of your choice will suffice, but my point still stands. A 20 to 30-minute consultation with a professional mediator will satisfy a few key needs that can help all parties prepare for an effective and rewarding mediation.
- Pre-mediation consultation allows you a chance to vent your side of the conflict before meeting with the other party—no holds barred. A good mediator will also want to consult with the other party, and allow them an equal opportunity to discuss their side of dispute before sitting down for the initial mediation session.
- Pre-mediation consultation helps you bring the dispute into focus and separate issues, values, interests and positions (your IVIP). Click here to learn more about IVIP.
A mediator is the best person to rely on to bring everyone to the table. Good mediators are skilled at persuading others to participate in mediation in a non-threatening, non-adversarial way, and a pre-mediation consultation will help the mediator understand the basics of the dispute, enabling them to extend a more enticing invitation.
2. Forget the past
After your initial consultation, take a couple of days to “memory dump” as much about your history with the other party as possible. Though it’s important to carefully evaluate your side of the dispute, preparing for mediation is not the time to get riled up by dredging up the past, or to draft a comprehensive list of the other person’s past wrongs. In mediation, ancient history is tedious, boring, and tremendously unproductive. So, unless past events help establish your interests and values, leave them out.
3. Forget about your story
Our stories usually contain more sub-plots than an episode of Breaking Bad, but are far less interesting. When I say forget about your story, I don’t mean that you should avoid talking about your reason for mediating. Instead, try to edit out the stuff that could suck you into a vortex of negative feelings and emotions during the mediation. Too much of your story obscures your perspective, and can trigger the other person to become defensive or lash out. So, again, unless part of your story is necessary to expressing your IVIP, leave it out.
4. Face the facts
John Adams famously said, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence”. Without a doubt, our opinions, demands, feelings and emotions surrounding our grievances are the prime motivators in the initial stages of dispute resolution. The problem is, no matter how righteous your viewpoints may feel, or how unimpeachable your positions seem, the truth is—they never are. Facts, on the other hand, have no regard for our perception of reality, or our emotions: water is made from Hydrogen₂ and Oxygen₁, it freezes at 32°, and evaporates at 212°, regardless of what we think or how we feel. Facts don’t take sides, and are equally common to all parties. As such, they should be eagerly sought, and dutifully utilized, as tools for clarity, reflection and objectivity.
5. Put away the win-lose mindset
Perhaps we’ve all watched too much Judge Judy, or have some imbedded notion that every dispute must be argued like it’s the second coming of Bush vs. Gore. But in mediation, the concept of win-lose, right-wrong, or guilty-innocent simply does not apply. Though mediated settlements often do have legal implications, mediation is not a trial or an adversarial forum for prosecuting or defending different sides of a case. Instead, it is a place to share interests, explore ideas, develop creative options, and find common meaning. Keeping this in mind when preparing for mediation helps you set proper expectations and open up to broader ideas for resolution.
6. Inhale – hold – exhale, repeat
When preparing for mediation (or any important conversation for that matter) it is crucial to practice some form of conscious or mindful breathing. If you aren’t familiar with the concept of mindful breathing, it’s pretty straight-forward: breathe in, hold it, then (wait for it) breathe out. I know…super complicated, right? But, as simple as it sounds, if you stop to pay attention on any given day, it’s amazing how often you can catch yourself breathing too irregularly, too shallow, too rapidly, or—not at all. Full, deep breaths signal the brain to release hormones that counteract the adrenaline released by our bodies when we are under stress. After a few breathes, the urge to fight or flee will naturally diminish, and our brains become primed for more advanced cognitive and emotional responses. Poor breathing is generally bad for your health, but in mediation, it can be the difference between crossing the bridge or burning it down. The more adept you become at conscious, mindful breathing before starting mediation, the better the chance that you will maintain focused, express yourself with clarity, listen attentively and be more creative in coming up with solutions.