You’ve probably already heard that most disputes can be resolved through mediation, and that parties make compromises to avoid litigation. While this is true, settlement does not happen by accident. In fact, to reach a settlement, especially one that satisfies you, you need to prepare thoughtfully for the day of your mediation. To prepare for this, Antonino Mercuri offers the following advice:
Determine your main interests in the dispute
It’s not just a matter of prioritizing your interests, but also of determining whether there are other things that are more important to you. Once you have identified your overall interests, consider developing a strategy to try to reach a compromise that takes your interests into account.
Be ready to make the first offer
Research has shown that the party making the first offer in a negotiation tends to be more satisfied with the final agreement than the other party, as the first offer defines the scope of the negotiation to follow. For this reason, Antonino Mercuri recommends that you be prepared to take the initiative and make the first offer.
Check your case objectively
To do this, ask your lawyer about your future prospects if your case goes to court. Make your lawyer aware of the reality of your case! Then, during mediation, take his or her advice into account in your decisions and in the terms of settlement.
Think about getting an estimate of the costs of litigation
Don’t forget to get an estimate of the cost of litigation from your lawyer. Litigation costs are the costs you will pay if you do not settle the dispute out of court, so be sure to quantify the costs and take this into account when you make your decision at mediation. Check that there is nothing to prevent you from committing to a mediated settlement. If you ever need funding to pay the other party, it is highly recommended that you do so in advance and, if possible, present evidence of funding at the mediation session. For example, if you need legal advice about a possible settlement, make sure you get it before the day of the mediation.
Think about how you are going to present your position
It is generally not wise to make direct requests without explanation. It is much better to state your position in detail so that the other party understands why you are demanding something. This will also increase the chances that your request will be accepted.
Finally, treat the mediator as a colleague and be aware that your private discussions with the mediator will be completely confidential and cannot be revealed to your opponent. So be prepared to confide in your mediator and make use of his or her services.
