Often clients starting mediation do not realize that they are beginning a negotiation. Many have no experience in negotiation and have not properly prepared themselves for the process. A well prepared client will be more comfortable in mediation and will negotiate more confidently and effectively.
We strongly recommend that all mediation clients at least have a lawyer. We prefer that the lawyers attend mediation as we find that leads to the best process with the best results. However, whether your lawyer is attending the mediation with you or not, here are some basic negotiation planning steps to discuss with your lawyer:
- Clarify the issues in dispute: usually broad substantive issues like how will decisions be made; the residential schedule for the children; immediate cash flow or payment issues; emergency decisions that need to be made; child or spousal support; what to do with the house, pensions, businesses, or other property; how to value assets and liabilities; legal and other costs; as well as process issues like whether to mediate, or have mediation-arbitration; whether the parties can be in the same room together; who needs to be at the mediation; how to retain third party experts such as appraisers, an actuary or accountant; and the personality or behaviour issues, such as how the parties are communicating with each other and the children; concerns about emotional abuse or physical violence; concerns about alcohol or drugs; the role of new partners; and so on.
- Define your “interests”: draw on your lawyer’s skill and experience to help you understand the difference between what you want (your position) and why you want it (your interests). Most lawyers are well trained in negotiation theory or collaborative law, and understand how important it is for you to be clear about your own interests, and also the other person’s interests. This will help you bargain with a sense of purpose in the mediation, and will also help you try to find solutions that meet the other person’s needs too.
- Discuss your alternatives to a settlement in mediation, and know your own limits: ask your lawyer to help you analyze your options, so you can know when you are in mediation what you will do if you don’t reach a deal. This knowledge will help you make reasoned decisions in mediation, rather than make decisions under pressure. It is important for each person to know when no deal is better than a proposed deal.
- Analyse the other party: what are his or her interests? How will he or she approach the negotiation? What strategy might his or her lawyer take?
- Discuss what information the mediator needs to have in advance Does either party have any religious, dietary or health-related needs that the mediator should know about? Are there unique cultural aspects to this mediation that the mediator needs to be educated about?
