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Preparation Is the Foundation for Achieving Settlement in Mediation

Katherine Moulton

Mediation is becoming a “must” in many states prior to a judge hearing a case.  While it may not be a written statute or rule, it is a preferred practice, especially in civil cases.  Having the opportunity to achieve settlement of a dispute without the time, expense and unpredictability of a trial takes an effort, but when properly planned for can allow both parties to feel that a fair resolution has been accomplished.

Whether you are one of the disputing parties or the mediator/facilitator, being prepared to participate in mediation responsibly, collaboratively and rationally is essential for a positive outcome.  Especially as one of the disputing parties, being prepared to present your case in a clear and convincing manner is important.  Before entering the meditation session, having some idea what possible areas of compromise you might accept, what issues you believe your opposing party would most likely be unwilling to concede to and compete to protect, those issues that are simply best to avoid, and finally what your ultimate objective is gives the best chance for a positive outcome.

However, the emotional quotient in the midst of an unresolved conflict is highly charged and, if not controlled can too easily hijack any chance of settlement.  Most of us know better than to go into a negotiation/settlement discussion ready to pick a fight so, why do so many parties still show up unprepared with teeth bared and weapons drawn?  I suppose it goes back to our primitive instinct of “fight-or-flight.”  Executives or high level professionals didn’t reach their positions by being push-overs, so it is possible that if the parties participating in the discussions have not prepared properly for the settlement conference, which includes managing emotions, we will unconsciously (or consciously!) come ready to do battle.

Whether you are the participating adversaries in the dispute or the third-party facilitator, preparation for the dispute resolution conference is essential.  Being prepared before entering the dialogue gives the best chance for a positive conclusion to be reached in mediation.  If given the opportunity to advise participants prior to the mediation, some of my recommendations are:

• If you have never been in a mediation before, do not hesitate to ask attorneys or other professionals who may have knowledge of the mediation process if they can give you an overview.  Having some idea of what to expect will ease stress, anxiety, or apprehensions you may have, which will help you to be more productive once the session begins.

• Come organized and ready to clearly and rationally explain your position in an opening statement.

• There may be elevated emotions at the start of mediation, which is natural when disputing parties find themselves face-to-face and having to listen to the opposing party describe their perception of the situation.  Focus on entering the process as calmly as possible.  It is likely that you know the opposing disputants emotional triggers.  If you are truly looking for resolution, think of ways to approach and present those issues differently to prevent any unnecessary distractions during the mediation.

• Know, as best you can, what your ultimate objectives are.  Also know what the minimum is that you expect to settle for.  Sometimes the issue is not just monetary, but emotional distress, repairing brand damage, or other issues may also need to be considered when working toward a final settlement agreement.

• Know what the priorities are you want discussed and included in a settlement.

• Are there items you are immediately able and willing to accommodate?

• Think carefully about which issues you are prepared to collaborate and/or compromise on.

• What are the matters you are prepared to fight to protect?

• If there is something you feel a need to avoid if possible, be prepared to accept that it may be brought up by the opposing party, and have an idea of how you might deal with it if it does arise.

• Come with a focus on settling the case and not on “win or lose.”  Trust that your mediator is able to not only hear what you and the other disputant are saying, but also able to “read between the lines” to help you to reach common ground on even some of the seemingly most disparate issues.  Being ready to collaborate and compromise are essential.

• Think about the worst case outcomes of taking the issues to court and determine the possible actualities if a resolution is not achieved:

• Are you prepared for the public scrutiny and revelation of possible confidential information, trade secrets or “dirty laundry” that arguing in court triggers?

• If the possible damages of leaving the outcome up to a judge’s opinion – both financial and emotional – are worth preventing settlement in mediation?.

• Do you have the time to wait for a litigated resolution that can take weeks, months or even years to work through the court system?

• Are you prepared to fund the potentially significant legal costs to argue the dispute in court, and even take responsibility for the other party’s legal costs if you lose in court?

• Is the opposing party a person or business one with which you want to attempt to remain on good terms?

All too often a mediator does not have the “luxury” of reviewing the issues and having an introduction to the disputants before the dispute resolution conference.  In that case, that is where an experienced third-party often has the most important role of all – setting the table for the most productive dialogue and a positive outcome in the opening remarks and especially in the early part of the conference.  Using the above questions (and so many others that experienced negotiators can add to the list) as a backdrop to establish the key issues will be essential in framing the day’s discussions and effecting a positive outcome.

It is important to remember that mediation is not a guarantee of resolution, but it can be an invaluable tool to settling conflicts.  As prepared as you may be entering the session, there will be issues that arise that you may simply not have expected.  What seemed like realistic compromises and outcomes coming into the mediation can end up being superfluous or even risky depending on how the mediation evolves.  Mediation rarely ends in a “winner take all” scenario.  With the range of options for which professionally facilitated negotiation allows, along with the threat of likely unexpected consequences that could occur in a courtroom, mediation will more likely allow a more balanced settlement conclusion.

Inflexibility, unrealistic expectations, and lack of preparation are sure-fire ways to prevent a case from settling.  Coming prepared for mediation will limit anxiety, expedites the negotiations, and has been proven to result in a higher chance of a resolution of the dispute.


About the Author

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Katherine Moulton is an award-winning hospitality executive and industry leader with more than 30 years’ experience..She is widely recognized by peers and business leaders, including as Independent Hotelier of The World by Hotels Magazine. She also offers strong advocacy for hospitality excellence, education and mentoring as well as a commitment to community through diversity of board and institutional roles. Ms. Moulton is a Florida Supreme Court Certified Mediator and focuses her alternate dispute resolution work on issues related to the hospitality and related industries. Katherine is a Partner and the Executive Director of Cayuga Hospitality Consultants and president of Hospitality Advisory Services.