Whatever the major stage of litigation that is upcoming, be that trial, discovery, or mediation, there is one common element:  preparation.  Preparing yourself and your client for mediation is as important as preparing for trial.  Better preparation leads to better outcomes. 

Tips for Counsel

• Know both the strengths and weaknesses of your position.
• If making an opening statement, craft your message in a way that won’t get the other party’s back up.
• In mediation, respectful advocacy is far more effective than forceful advocacy.
• Think about the critical ingredients of a settlement agreement before arriving at the mediation.
• Tally up the costs to date and estimate the costs to complete a trial.
• Try not to make opening offers that are unrealistically high (or low).
• Ensure that the ultimate decision maker is at the mediation.
• Ensure that your client understands “settlement momentum”.

Tips for Parties

• Understand that there is a “string to be let out”:  opening offers are never final offers.
• Some people say that there is no such thing as a “final” offer.  There is some truth to that!
• It is essential that the representative of the party attending the mediation has the authority to settle.
• Being respectful in a mediation is paramount.  Angering your opponent hinders settlement.
• Victory and vindication are not the goals.  
• Dignity, certainty, satisfaction and closure are the goals.
• Remember that it takes a lot of princiPAL to uphold your princiPLEs. 
• Never lose sight of your BATNA (Best Alternative To a Negotiated Agreement).