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Not much time?...quick prep
What are our interests? Why are we taking a particular position? This table and these questions might help focus on the possibilities:
Do we know yet know what a desirable range of outcomes might be? ○ What’s our BATNA? ○ What’s our WATNA? Is this a case that should be: ○ Ignored. ○ Settled. ○ Litigated in order to establish a principle Defining Their Interests
What do we know about the other side’s goals? Do they want anything that we could give them at little or no cost to ourselves? ie, can we enlarge the pie before we divide it? Discovery of Facts What do we need to know in order to assess: ○ Settlement options. ○ Litigation risk. ○ Collectability. What do we need to find out in the mediation? Is there other information that could be exchanged informally before the mediation? Do we need to request limited discovery of documents before the mediation? Preparing the Mediation Team
Who should participate in the mediation: ○ Knowledge of situation. ○ Knowledge of settlement options. ○ Ability to appear sympathetic and empathise with the other side. ○ Negotiation skills. What is the best way to educate the other party and the mediator? Would any demonstrative evidence help to persuade the other side - photographs, charts etc? Rehearse: ○ Curb excess verbosity (but consider the value of venting). ○ Train yourself and your team to look at the other party while speaking in joint session. Consider: ○ How can we increase our credibility? ○ What should be our first offer? ○ How should offers be communicated: - through the mediator. - through the lawyers. - directly. - in writing/orally.
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