It is critical that you communicate, verbally and non-verbally, to the mediator and the opposing party that you are prepared -- you know the facts and you know the law applicable to your case. The better you know your case -- its strengths and weaknesses -- the better you will be able to formulate an agreement which will be acceptable to you and your opposing party. For example, your knowledge of the case will enable you to provide the mediator with facts and information which he might use with the other party to help move the other party toward your position. For another example, it is better to discover in preparation for mediation that your position is shaky instead of discovering as much through an adverse judgment!
Do Not Skip The Mediation Opening Statement
Some frequent litigants (e.g., credit card companies) are so anxious to get to the negotiation process -- the shuttle diplomacy conducted by the mediator -- that they either skip or give short shrift to the mediation opening statement. This is a mistake. Your opening statement gives you the opportunity to explain the case to the mediator, to gain credibility with the mediator and the opposing party because of your demonstrated facility with the case, and to anticipate and address some of the other party's arguments. This is your opportunity to speak directly to the other party. You probably won't get another chance to have this sort of a communication with the other party -- don't willingly give it away.
Be Prepared To Walk Away
If you begin mediation prepared to walk away, you have great negotiating power because you are negotiating without fear. There is an undeniable inherent value to settlement, but you need an agreement which works for you. If you cannot reach a deal, then do not be afraid to end the mediation. Yes, it will be frustrating to have attempted to resolve the matter and come up short, but it is far more frustrating to continue to try to obtain something which is not attainable. Indeed, sometimes the cessation of mediation acts as a "wake up call" for a party and a continued mediation or subsequent negotiations might produce the desired agreement.
There are plenty of books and articles out there which provide negotiation strategies. However, you can't successfully be what you're not. If you are a relatively reserved person, then it makes little sense for you to start negotiations with an outrageous initial position. If you are an outspoken person, then it makes little sense for you to start negotiations with an initial position which affords you little movement because it is so close to your "bottom line." Give some thought about how you might work your way through the give and take of mediation beforehand and then be yourself.
Listen To The Mediator
The best mediators help you explore and understand the weaknesses in your positions throughout the mediation process. The best mediators also help you understand the needs and desires of the other party so that you understand what the other party needs in a settlement agreement. Listen to your mediator and you will have the best chance of reaching a settlement agreement. You should also listen to your mediator because, even if you do not reach an agreement, the mediator's assessment of your case will be helpful as you prepare for trial.
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