pre-mediation exercises...

practical preparation

Some mediators ask parties to prepare a confidential submission in advance of the mediation, based on a number of searching questions; others go through the process during the mediation. Both methods are designed to analyse the parties real concerns, wants and needs.

• the time that the dispute is likely to take if not settled
• the money
• the risks (prospects of success or failure at trial, costs consequences)
• the need to be vindicated or to 'get even'
• personal grievance or need for apology
• the need to dispose of this dispute and move on ('get a life')
• a fair deal or the best deal
• salvaging a working relationship
• other projects that may suffer.
  
  Then consider how the other parties might list and rank the issues that are important to them: beware of assumptions and stereotyping.
  
  Are there any points of agreement between the lists? Where are the points of principal disagreement - are they 'real' issues for you? Try to consider over which points you might be prepared to accept compromise in return for movement on issues that are more important.
  
  You do not have to say any of this at the mediation, but it may help you to present the issues that are of most concern to you. Where you have been able to identify areas that are the subject of particular disagreement, consider what evidence you need to help persuade the other party to see your point of view.
  
  BATNA and WATNA Analysis
  
  Consider carefully and realistically the alternatives to a settlement by negotiation (i.e. through mediation). Some mediators call this the BATNA (best alternative to negotiated agreement) or NBA (next best alternative).
  
  It is not the same as the best possible outcome, rather it requires an analysis of the best likely outcome if the matter is not settled.
  
  Then consider the worst likely outcome.
  
  When thinking about it be realistic, include irrecoverable costs, the ability of either party to comply with any awards, and the maximum financial risk if you lose on every point. (It happens).
  
  Then, when you are in the mediation, compare both the best and worst likely outcomes with what seems to be on offer. Providing your analyses were reasonably realistic, you will be able to make an informed decision about how far to negotiate at the mediation.
  
  The List Model
  
  This is very similar to the BATNA WATNA Analysis, but you are guided through each step:
  
  1. Write a list of the issues that are most important to your case.
  
  2. Write a list of the strongest points to your case. (Be realistic).
  
  3. Write a list of your weakest points. (Be honest with yourself, and don't miss out bits that you think the other side don't know about if there is any likelihood that it might come out at trial).
  
  4. Write a list of the evidence you have to support each issue. Include documents and the likely evidence of witnesses.
  
  5. Identify and write down any issues that are not supported by evidence. (Can you obtain any evidence to support them?)
  
  6. Write a list of your legal arguments relating to a) Liability and b) Quantum.
  
  7. Repeat, but this time use your best 'guestimate' to answer as if you were the other party. Again, be realistic, and avoid assumptions and stereotyping.
  
  8. Compare the lists. Are there any similarities? What are the differences?
  
  9. Give a copy of your lists, in confidence, to the mediator.
  
  10. As the mediation progresses, you may need to alter your lists depending upon what you discover about the other party's case, and indeed about your own. You can use the lists as a framework for the negotiation, and to help you prepare your opening remarks.