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Five Steps to Prepare to Win at Mediation

5 Steps to “Prepare to Win” at

Legendary Hall of Fame basketball coach Bobby Knight is
certainly a controversial figure, but one thing that is not controversial is
that his teams won, and won often.  There
are many reasons for this success of course, but I have always been struck by a
famous quote attributed to Coach Knight, “The will to win is not nearly as
important as the will to prepare to win.”  Serving as a register civil and family law
mediator for over a decade, I feel that our practice would be well served to
follow Coach Knight’s words.  Too many
times I arrive for mediation and the parties and their counsel are not
prepared.  The following are 5 steps to “prepare
to win” at mediation:

  1. Understand the Process.  There is no doubt in my mind that a general unfamiliarity with the process is a clear impediment to a successful mediation.  Stepping into the unknown is an unsettling proposition in any endeavor.  Knowing that your case hinges on the outcome of that unknown is even more troubling.  As a consequence, attorneys must explain the entire mediation process to their clients in advance.  Far too often I walk into the mediation room and it is crystal clear that the client knows absolutely nothing about the mediation process.  Of course, I am glad to take the time to offer that explanation, but I cannot help but think that the client’s anxiety could have easily been handled in advance through a brief consultation with their attorney.  The attorney is supposed to be the expert and, as such, should know that their client (the non-expert) not only needs, but is entitled, to an advance explanation.  If known to the attorney, simple information about the location of the mediator’s office, the layout of the office, a description of the mediator (their personality, for example), the fees involved, and the expected style of mediation, such as shuttle mediation or all-in-one-room mediation, can be extraordinarily helpful to the client.  Good surgeon’s go through the procedure with their patient before they go under the knife.  There’s really no good reason that attorneys cannot do the same with their clients. 
  2. Do ALL Discovery in Advance.  Early in my mediation career I was selected to mediate a boundary line dispute between neighbors.  The properties involved were large and circuitous.  The attorneys were both experienced and they both had numerous cases supporting their differing legal positions.  The clients were firm on their positions but not unwilling to put forth a good faith effort to resolve the matter.  There was hope in the conference rooms.  Unfortunately, it became immediately clear to me that the case would not settle.  To my astonishment, no one had conducted a land survey!  These attorneys are certainly not alone.  Countless times have I begun a mediation and the attorneys are, for the first time, pulling out a paystub, a set of photographs, or a retirement savings statement.  Frequently, interrogatory responses are just being provided or, worse yet, being filled out.  This certainly cannot boost the client’s confidence in their counsel or the process.  These situations are, of course, avoidable with proper planning.  Successful attorneys conduct full discovery in advance and seek court assistance if the other party is not providing needed material information.
  3. Come with a PLAN.  Obtaining all discovery information is not the end of mediation prep.  It seems obvious but counsel should then review the information with their client and come up with a plan.  Attorneys that step into the mediation office with a plan are, in my experience, far more successful than those who just “go with the flow.”  Just by developing a plan, even if it is ultimately not followed, creates an intimate knowledge of even the smallest details of the case.  That knowledge is vital in not only in offering sound advice but also avoiding oversights.
  4. But, Be Flexible.  Be prepared to deviate from that plan.  The judges I have encountered certainly care about the litigants that come before them but, frankly, they typically do not have the time or a deep enough understanding of the unique peculiarities of a case to craft an ideal order.  They will consider the evidence before them (which may or may not provide the full story) and then do their best to follow the written statute.  The beauty of mediation is that the parties can create an agreement that fits their lives, not necessarily a statute.  Attorneys need to be flexible and not be an impediment to that creative process.  This means that they may have to be flexible and deviate from the original plan.  So, as long as the client has the information and advice to make an intelligent decision, let them be creative!
  5. Know When to Close the Deal.  It is a rare litigant who gets everything they want at mediation.  Competent counsel understand this fact about mediation and convey it to their clients well in advance of the mediation date.  Emotions run high in mediation and it is easy for a client (or their attorney) to become irrational about even the smallest concession.  Clients that are prepared for this eventuality – that is, understanding that compromise is an essential ingredient to a successful mediation – are better able to make those decisions for the betterment of their overall case.  Focus on the big picture throughout your representation so that the war is not derailed by small, inconsequential side battles.  Prepare the client to know when to close the deal!

Reimondo is a partner at Capper Tulley & Reimondo and has served West
Central Indiana as a registered civil and family law mediator for over a

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