Jan 1, 2023
By Kenneth P. Strongman
The resolution of a dispute does not just occur on the day of the mediation. Each participant to mediation needs to prepare their own strategy for negotiation in the settlement. In other words, there is homework that needs to be done to have a successful resolution. Based on my experience as a mediator, here are a few tasks each participant needs to complete before the mediation.
These tasks and the discussions with the mediator are confidential. They are confidential under both Attorney Client privilege and under mediation confidential provisions in court rules, statutes, and standards.
Do you and your opponent agree on anything?
What do you and the other parties agree upon?
These can be significant or minor issues in the dispute. Anything will do. The purpose is to build a voluntary resolution to the dispute.
Can you agree that there is a dispute? Sometimes your opponent will not admit that there is a dispute or what is really the dispute. If you can’t agree that there is a dispute, or the extent of the dispute, then what will we have to do to have a successful mediation?
Other more obvious agreements might be: Is there a written contract? Is this document the contract? Does each party have enough information to evaluate the case? Can you agree on dates, times, people involved significantly in the dispute?
Be prepared to not only share your results with your attorney but with the mediator as well. Because of your efforts now, at the mediation you will be able to cut though to a voluntary agreement almost effortlessly.
What are the weaknesses in your case?
In this exercise, your attorney will need to take the lead in preparing your answer. It is important that you understand its impact on your position.
You need to articulate all of the weaknesses in your case. These can be issues of law. I have seen issues that involve the statute of limitations. Other times, I have seen where the original complaint did not name the correct defendants. These may be extreme examples, but no case is perfect.
There can be issues of evidence. It can be simply lack of evidence to support your claims. It can be the credibility of the evidence. Is it admissible or will its admissibility be challenged? Seldom is there enough credible evidence to support each element of the claim. Likewise, defenses have their weaknesses as well.
There can be issues of witnesses. Will they persuade a jury or will the jury discount their testimony? Are they available? Will they ‘show well’ to the jury? Can they be easily impeached?
Is a jury in this jurisdiction favorable to your position or that of your opponents? And the list goes on.
This can all be summed up by asking what your opponent will say about your case?
What’s wrong with the other side’s case?
Now is your attorney’s opportunity to turn the introspection of your own case on its ear. You need to list everything that is wrong with your opponent’s case. You need to review this confidentially with the mediator.
How are you going to deal with them after the dispute?
This task is more focused on how you are going to deal with your opponent’s five to ten years after the dispute is resolved.
The easy answer to this question is that “I never want anything to do with them again.” If the dispute is an automobile accident, then that might work as an answer. But if your opponents are commercial suppliers, customers, fellow businesses in a limited market, employees or employers, neighbors, and even family, the question becomes a lot more challenging.
I have mediated boundary line and other disputes between neighbors. It becomes a lot more difficult to resolve when both neighbors realize that they will still be living next door to each other for possibly decades. I have also mediated disputes with family-owned business. They had to take into account the likelihood of having to sit down for Thanksgiving dinner with each other. There were also the unintended impacts on other family relationships that were not in dispute. Commercial enterprises need to evaluate the publicity of the dispute and the possible need for an ongoing business relationship now and in the future.
Carefully list and count the costs regarding different solutions to the dispute. Might there be a better settlement that reduces future conflict. Also evaluate the costs of litigating the dispute to its conclusion on the future relationship to your opponents.
What do I do as a Mediator
As a mediator, I quickly get all sides to build trust in myself so that: They believe and understand what I need to accomplish with them at the mediation. As mediator, I’m their new best friend by the end of the mediation session so that I can persuade them to do things in their best interest and to listen to me as a mediator.
I will manage the process so power is not considered to be one sided.
As the mediator, I will be a good listener so that everyone is heard. Conversely, I will be selectively deaf to comments that are counterproductive. As a good mediator I’ll reformat the incendiary comments to keep the processing moving forward.
I will make all sides aware of the needs and motivations of the other side, educating all parties to their opponents’ reasonable needs and motivations. I start this process before the mediation and continue it through to resolution of the dispute.
As mediator, I will educate each side on the worst-case scenario if there is no resolution to the dispute and will use whatever means is reasonably necessary to resolve the conflict helping all of the parties to resolve the dispute.
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Mediation Office of Kenneth Strongman (925) 945-7244 www.kpstrongman.com
*Mr. Strongman has provided private commercial mediation of complex, high risk litigated cases since 2004. Disputes addressed include business, securities, construction defects, real estate, intellectual property, employment, environment, energy, and trusts & estates. Mr. Strongman is currently the vice president of the Mediation Society.