Representing a client at mediation is different than doing so at arbitration or in court. In the mediation process, your client has control of the outcome and will not have one imposed upon them.
To that end, the way that legal representatives approach mediation can make all the difference. Attempting to convince the mediator that your legal position is right and the other party is wrong will do little to resolve the dispute. You need to convince the other party to agree with the solution your client prefers.
Often, parties directly involved in a conflict can get emotional. They can get sidetracked due to hurt feelings, the principle of a matter or judgements of others. Legal representatives can be most effective by keeping clients focused on the big picture and the end goal of their participation in mediation.
While this very much involves ensuring that your client's participation in the mediation process is constructive, it also includes doing some homework in advance of the mediation to understand where your client is coming from and to ensure that they have a realistic understanding of what they are facing. We can use fancy ADR terms like BATNA, WATNA, MLATNA but what really matters is ensuring that your client comes to mediation ready to settle the dispute if it makes sense for them to do so, and prepared to move ahead with other paths available to resolve the conflict with a realistic sense of the cost, time and chance of success involved.
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The Road Ahead
This worksheet has been prepared to assist legal representatives prepare for all facets of their involvement in mediation.
Unlike other participants in the process, the role of a legal representative is multi-faceted. This worksheet is designed as an internal document to consider the various ways that you can prepare for mediation and how you can prepare your client.
Clicking the link above will provide you with a PDF of the aforementioned checklist. It is offered free of charge and without you being required to provide anything in return - not even your e-mail address!