Despite these efforts, problems sometimes arise during mediation. A mediator really does not know what he or she will hear until the mediation begins. Even in business cases, emotions will sometimes get the best of a party. Often, a party will focus on something that seems tangential--but still must be addressed to reach a settlement.
Here are a few suggestions on getting clients ready to settle:
- Make sure the clients understand that mediation may be their only chance for a resolution that they can influence.
- Make sure that any tangential issues have been discussed and are known. It may be a good idea to discuss these issues confidentially with the mediator in advance.
- Make sure your clients know that they may--and probably will--hear things during the mediation that will make them angry. Remind them that the process is confidential and that they will also have "their say."
- Discuss a range of possible settlement numbers with your client and have a plan going into the mediation.
- Try to make sure that you know all possible non-monetary issues that must be addressed. Examples might include a return of personal property, confidentiality and non-disparagement, apologies, or an agreed public statement regarding resolution. The time to put these issues on the table is before, not during, the mediation.