How to Prepare for a Successful Mediation

Use these links to jump to different sections:

• What is Mediation?
• 1. Find an Attorney with Mediation Training
• 2. Try to Keep an Open Mind
• 3. Avoid Concrete Expectations for Outcomes
• 4. Realize that Mediation Isn’t Zero-Sum
• Finding the Right Attorney for Your Needs

Alternative dispute resolution (ADR) refers to several methods for resolving legal disputes without litigation in court.

Mediation is one of the most common alternative dispute resolution processes.

What is Mediation?

In mediation, a neutral third party called a mediator helps the opposing parties reach a successful resolution of their dispute through negotiation.

Mediation sessions can be done face-to-face or virtually and they can be used to resolve many types of conflict, from business and employment law issues to family law matters such as divorce and child custody.

Mediation avoids litigation costs and is generally much quicker than going to court. Disputes are often resolved through mediation in a matter of days rather than months.

My philosophy is that mediation is a way for both sides to discuss all the possible options out there and come to a conclusion that they can live with in order to put litigation behind them… To have something you can live with, even if it’s not your ideal resolution, is invaluable… Ultimately, you won’t leave mediation saying either, ‘I totally won or totally lost.’

Mediation also tends to be less stressful than litigation. A primary reason for this is that the parties are more involved in the decision-making process. Instead of leaving the major decisions up to a judge, the parties are the decision-makers. And unlike in arbitration, where the arbitrator makes a binding decision for the parties, in mediation the opposing parties are directly involved in problem-solving.

Mediation involves compromise, and even if neither party is totally satisfied with the outcome, they at least know what the outcome is going to be ahead of time. The parties’ active involvement in negotiations helps ease the uncertainty around possible outcomes.

Linda Mealey-Lohmann, an attorney in St. Paul, Minnesota with many years of experience practicing and teaching ADR, shares insights on how to prepare for success in mediation.

1. Find an Attorney with Mediation Training

“It’s very helpful if an attorney has taken ADR training. While you can be a mediator without having any formal training in it, there are mediator training courses that I would recommend all attorneys take,” says Mealey-Lohmann.

ADR training helps lawyers understand how their role in mediation is fundamentally different from representing a client in litigation.

“The lawyer’s role in mediation is to be more of a legal advisor to their client about potential options and to help them think creatively about how to resolve the issue—rather than trying to convince the opposing counsel that their case is bad and they should just settle,” she adds.

Unlike the attorneys who help their clients with legal advice and negotiation strategy, the mediator is not an advocate for either side. Instead, the mediator:

• Helps each side communicate their position clearly
• Helps the parties work through obstacles in the negotiating process
• Helps the parties arrive at a solution that they can both accept

2. Try to Keep an Open Mind

Mealey-Lohmann advises individuals to enter a mediation session thinking, “I’m going to learn something new here that I didn’t know before.”

What are some tips for keeping an open frame of mind on the day of the mediation? She suggests a few helpful pointers:

• Be willing to hear what the other side has to say and don’t cut them off
• Hear what their proposals are for how to resolve your legal dispute
• Think about how you’re going to phrase things ahead of time
• Speak in a way that won’t inflame the other side, but will help them understand what you’re really trying to communicate

“Even with the best intentions, these cases can get very emotional, and emotions can rise,” says Mealey-Lohmann. “That’s part of mediation. But to come in with an open mind, having considered how to phrase things so that the opposing side will understand, is very helpful.”

3. Avoid Concrete Expectations for Outcomes

“Don’t come in with concrete expectations—as in, this is my bottom line and I’m not budging from it. The reality is that people always learn new things in mediation, and they should adjust what they’re willing to pay or accept based on that new information,” says Mealey-Lohmann.

By the same token, don’t disengage from the process if the first offer in a settlement discussion is not ideal. Mediation is about compromise and reaching a mutually agreeable solution. With your attorney and the help of the mediator, keep working towards a resolution.

4. Realize that Mediation Isn’t Zero-Sum

“I think one final tip for people going into mediation is don’t go in with a win/lose mentality. Ultimately, your goal is to find a dollar amount that both sides can live with. It’s a little bit of a win and a little bit of a lose for both parties,” says Mealey-Lohmann.

“My philosophy is that mediation is a way for both sides to discuss all the possible options out there and come to a conclusion that they can live with in order to put litigation behind them. To litigate for another year or two after mediation is a big mental load. Ongoing litigation disrupts work for businesspeople and employees, and it disrupts and intrudes on their thoughts—sometimes 24/7. To have something you can live with, even if it’s not your ideal resolution, is invaluable.

“Ultimately, you won’t leave mediation saying either, ‘I totally won or totally lost.’”

Finding the Right Attorney for Your Needs

To find an experienced mediator or ADR attorney in your area, visit the Super Lawyers directory and use the search box to find a lawyer based on your legal issue and location.

To help you get started, consider looking for an alternative dispute resolution lawyer. Learn more about mediation and other ADR methods by reading our overview of alternative dispute resolution.