Mediation is a great tool for parties involved in a legal dispute to resolve their case. The process is non-binding until an agreement is reached, and what is discussed by the parties during mediation typically cannot be used in court. A successful mediation can also conclude a case that would cost ten or more times as much money to resolve through a trial.
Clients often asked what can be reasonably expected from a mediation, particularly if the relationship between the parties is particularly negative or hostile. While the rapport between parties can make a difference in any negotiation, it is not the most essential element. Many divorce and family law cases have successfully been resolved despite animosity between the parties.
So what is essential to a successful mediation?
1) Preparation – The parties both need to come to mediation with a clear understanding of what is being negotiated, what are the underlying circumstances regarding finances and practical lifestyle needs, and what the law says about each subject.
2) Attention – If you don’t have any intention of settling any of the matters in dispute, then no good faith efforts by the other party will matter. Similarly, if rehashing old arguments trumps settling disputes, then the time and money spent on a mediation effort will be wasted.
3) Compromise – “A good settlement leaves no one [completely] happy.” I added the ‘completely’ part, but this expression holds great truth. In any negotiation in which both parties have agency to bargain, a surrendering of some issues will be required to achieve success on other issues. I also advise my clients that mediation is not the place to dig in their figurative heels. Rather, mediation (and hopefully before mediation) is the time to consider what is truly important, and what is merely preferred. Those issues which merely have preferred outcomes but are not essential – on those we must be ready to give to the other side.