Mr. Bishop provides continuing education classes for attorneys and other mediators. He drafted an article for attorneys and parties that represent themselves on how to get the most out of mediation. His article more detailed and can be viewed here. The following are some of the best tips for attorneys and parties that represent themselves in mediation.
- Provide a thorough Mediation Memorandum. The more detailed, the better. Educate the mediator up front regarding the facts and why you are taking your positions.
- Disclosure and Discovery. Ask the other party for information and documents that you feel you need in advance of mediation. If the other party refuses to provide you with such information, it causes trust issues and difficulties in reaching agreements.
- Understand the legal issues. It is always smart to consult with an attorney and/or do your own research regarding Arizona laws applicable to your issues. Many of these laws are set forth in Arizona Revised Statutes Title 25.
- Think through your proposals and whether they will provide you with what you need. Also think through what consequences should be imposed if the other party does not comply. That way when you reach agreements you have thought through all angles.
- Think through what is important to the other party. If you can address your own needs while also meeting some of the needs of the other party, you will be that much closer to obtaining successful agreements.
- Avoid making unreasonable offers. Sometimes parties believe that they need to start with a super extreme high-ball or low-ball offer. This often makes it difficult to settle cases as the other party then feels that he/she needs to take extreme positions.
- Avoid bottom line offers until later in the negotiation, and only if you mean it. It is fine to keep some room for negotiation but avoid drawing the line in the sand.
- Avoid posturing or acting like a bully. This generally backfires. It is usually easier to get a settlement accomplished with a little “sugar”.
- Be sure you (or your client) are committed to agreements reached before you sign the dotted line. Nobody says that you must reach a final agreement during mediation. It is better to take time to think about an offer than to agree to something that you have buyer’s remorse over later.
- Listen and try to understand what is important to the other party. You may think you know, but you may be jumping to conclusions or letting anger interfere with logic. Often an agreement can be worked out that addresses what is important to both parties.
- Make sure to have a professional involved in drafting agreements. This should be your attorney or a qualified attorney-mediator. A poorly drafted agreement may include terms that are ambiguous or unenforceable. A professional mediator or attorney should be involved to ensure that the documents are prepared properly.
- Be patient. Mediation is often a process. If you take your ball and go home too quickly, you may lose an opportunity to reach agreements that makes sense and which could save you thousands of dollars in attorney fees and costs.