People usually believe that mediation begins when all concerned parties meet in the mediation room and take their places at the mediation table. The truth is that mediation begins when disputing parties agree to participate in a private mediation or when they are notified by the Court to appear in a mandated mediation session.
This pre-mediation phase is frequently overlooked and underestimated for the potential power it has over the outcome of a mediation session.
Would you perform in a stage play without holding a dress rehearsal? The answer is obviously, “No.” Yet, people go into mediation everyday with very little or no preparation for what could be one of the most important days of their lives. This is even more significant when you consider that decisions made during mediation can have critical, life-changing effects for not only the disputants, but for their families as well. Why is the lack of thorough preparation for mediation so prevalent?
One reason is that while we all have seen frequent television and film portrayals of litigation and courtroom trials, mediation is a relatively unfamiliar form of dispute resolution to most people. The need for prepping witnesses and clients for trial and depositions is widely expected and accepted, while detailed pre-mediation preparation and coaching receives little attention and has much less importance attached to it. The result is that people attend mediation sessions unprepared to deal with the dynamics of mediation and the decisions that will dramatically affect their future and their well-being.
Another reason is that professionals who assist disputing parties with mediation are typically very familiar with the mediation process. Understandably, it’s easy for them to overlook the fact that mediating parties, unfamiliar with the process, can become overwhelmed by the many challenges inherent in a mediation session. This is especially true when emotions kick in and tensions run high. Thinking clearly in a charged atmosphere is difficult. Successfully handling the potential for emotional fall-out is a key area that professional mediation coaching is designed to address.
Other landmines that await disputants include the lack of pertinent paperwork, unorganized paperwork, not understanding the significance of important documents, losing focus during the session, and not being prepared to “tell your side of the story” in a clear, concise and persuasive manner. These are all issues that can be addressed in pre-mediation preparation.
Experience shows that when asked about their mediation experience, people frequently respond that they wish they had been better prepared. And, they report, if they had received more in-depth coaching, they feel they would have realized better results at the mediation table. In fact, a common post-mediation response is, “I just wanted to get it over with. I felt pressured and I felt overwhelmed.”
If you are a disputing party heading into mediation, “just wanting to get it over with,” is selling yourself short. Mediation is your chance to be heard and to take an active part in creating a resolution that works for you and meets your needs. Increase your chances for mediation success by ensuring that you receive the detailed, in-depth preparation you deserve. Professional mediation coaching can prepare you to help steer your mediation to the win-win proposition it can be.
First published in the San Francisco Daily Journal on April 10, 2015. Introduction Fee disputes pose a minefield for attorneys. Cautiously stepping through disputes may maximize your ability to retain or...By Jobi Halper, Malcolm Sher, Esq