Most experienced practitioners prepare their client for mediation, but not systematically. A systematic approach to mediation preparation results in better substantive outcomes, a more efficient process, and a template for application to any kind of case. Is your method of preparing your clients for mediation effective?

 

Consider our recent informal survey of 30 experienced litigators about how they prepare for mediation. Nearly all said that they discuss speaking roles and settlement authority with their clients. Almost none said they spend more than an hour or two preparing specifically for the mediation process.

 

We also asked whether they prepare questions to ask prospective mediators before appointment, and questions for the adversary during the mediation. Finally, we asked if they strategize about the most appropriate moment to reveal an opening financial demand or counteroffer.

 

The overwhelming response to these questions was no. This suggests that much needs to be done to educate litigators and others about preparing systematically for mediation.

 

In the 1980s, Roger Fisher introduced a simple framework for negotiators to use that focused on improving substantive results without placing undue strain on the parties’ relationship. The key to the Getting to Yes approach was systematic preparation.  It worked because it minimized the likelihood that the negotiators would engage in unproductive conduct that could cause the negotiation to fail. The systematic preparation model also refined the negotiators’ skills, and gave them the confidence needed to develop creative solutions that would result in a better overall deal.