It is likely that you have agreed to mediation because the alternative—continuing a costly and time consuming litigation—is undesirable. It is also likely that your adversary holds the same feelings as you and sees an early end to litigation as more fruitful than continuing a play that will take many turns and twists before its conclusion and that will perhaps be unpleasant for one or all sides. Having agreed to mediate, what is the first, best advice that a mediator can give to the participants? It is simply: Prepare for mediation as you would prepare for a court conference, arbitration, or even a trial. In short, know your case fully and present it to the mediator as you would to a judge and jury.
You might say that mediation is not a trial requiring hours of preparation with the witnesses, preparation of exhibits, preparation of briefs, preparation of doctors, and on and on. You would be correct that is not the type of preparation needed for a mediation, but what is often seen by mediators is an incomplete appreciation by one or both parties about the issues in the case, the appreciation of the weaknesses—as important as the strengths—of the case, the likely arguments that the opponent will raise, and the settlement amount that the client will accept. We often see parties appear for mediation never having had a frank pre-mediation discussion about demands and offers to see if it is even worth going to mediation.
