Speak to the Mediator before the mediation.
Unlike litigation and arbitration, there is nothing wrong with talking to the mediator ahead of time. Explain what the dispute is about; why it’s important to your client; what settlement options have been considered, what’s been discussed and why it hasn’t settled.
Come to the mediation with settlement options not legal arguments.
The goal of mediation is to negotiate a favourable settlement for your client, not to convince the mediator or other side you have the facts and law on your side.
Of course, facts and law are important, but only to the extent that they make certain settlement options more or less appealing to each side.
Come prepared to listen to the other side.
Use the mediation to learn how the other party sees the dispute; why it’s important to them; what settlement options they would seriously consider and why (or why not).
Really listen – don’t just wait for your chance to explain why they’re wrong.
Let your client do most of the talking.
Remember, this is their dispute. They have the biggest stake in the outcome. And they have to live with any settlement.
Counsel can be an effective advocate if the client is uncomfortable speaking – or on technical legal points. But that is never as effective as parties advocating for themselves and speaking directly to the mediator or to the other side.
Face-to-face negotiation may be more effective than speaking through the mediator.
There’s a strong temptation to quickly move into separate rooms, especially of there’s an element of personal conflict or ill-will. But meeting together can often clear the air and open the door to frank discussion that leads to settlement.