Preparing for Mediation
In preparing for mediation selecting the right mediator has to be top on the list. Mediator Ethical Guidelines as set forth by the International Institute for Conflict Prevention and Resolution and Georgetown University Law Center place the number one duty for mediators is to permit party self-determination. What does that really mean? There are multiple styles and tactics that mediators use today based on their training and education. Mr. Shapiro interprets this duty consistent with a recent American Bar Association survey of corporate counsel/users of mediation who state they want to have a say in determining the type of process and the style to be used for the particular case. Some mediators work to develop a quick assessment of the case and begin negotiation with settlement offers while other use a more facilitative style. Party self determination means finding out exactly the nuanced style that the parties are looking for and having a mediator who can match that need. Mr. Shapiro does exactly that by carefully listening and engaging with the parties to hear their concerns and interests regarding the process they believe is needed for the case and then negotiates a structure that meets their preferences.
As important as selecting the right mediator for your dispute is each side’s preparation. Preparation must be addressed and prepared for with the same level of intensity and thoughtfulness as you would for litigation. One difference is that you are not preparing to bury the other side on cross examination rather you are spending time working to identify and clarify your and the other side’s business interests. Some principals in mediation have a difficult time with this concept – the basic notion is that when each side gains a better understanding (not agreeing) with the other side, parties are often able to problem solve towards solution rather than staying protracted in positions.
Another key aspect of mediation is the principals and counsel gaining a clearer risk assessment of the case. Mr. Shapiro’s approach in most cases is through preparing counsel to deliver a direct, clear and concise legal statement that is directed towards the principal on the other side of the table. Mr. Shapiro listens and interacts with each counsel after their presentation to seek clarification and understanding of the legal strengths of their case. Some attorneys do not believe that mediation is the time or place to share all the key evidence, the “smoking gun” which if released early will hurt its chances if and when the case does go to litigation. Depending on the case, the stage of discovery, or informal document exchange, Mr. Shapiro strongly encourages the disclosure of all relevant documents that will be used in litigation. Without all information exchanged there is an imbalance in the mediation and there will be a challenge to reaching a fair and equitable settlement.
Once the legal discussion/risk assessment is complete and there is a full discussion of the interests the true problem solving takes place. This is the stage where the expression “expand the pie” takes shape. One recent case that Mr. Shapiro was involved with concerned testing a pipeline under the Department of Transportation Pipeline Safety rules. The problem was that there was only one pipeline and only one immediate source of natural gas going to this major metropolitan area. The parties agreed to a joint venture to build a pipeline loop that can receive the gas while the main pipeline was being tested. There were numerous options considered in this matter, however a new business venture emerged as the most logical, practical, and feasible step.
In certain cases Mr. Shapiro will provide shuttle mediation inventing options between the parties in order to move to a final settlement.
Each stage must be thought through and fully prepared for. Of course if you are going through the motions and have no commitment to settle the case or are stoic about your position being fully justified and you expect the mediator to agree with you, it might be a difficult case. Prepare for the mediation with an open mind, review the strengths and weaknesses of your case with an open mind, and finally come to the mediation with an open mind.