Quite a few times in the life of this blog, I have visited the notion of preparation. I usually address it as a result of someone attending mediation not being prepared.

Well… as you might guess, it happened again. I had a mediation last week where it was obvious that defense counsel did not know the case. As we discussed the facts, she was clearly reading from documents on her computer screen. When I brought up issues that plaintiff’s counsel had pointed out to me, she was not aware of them.

Although this mediation was scheduled for a few hours, it lasted barely an hour. Defense counsel requested that we pause the mediation to allow her an opportunity to investigate the facts and find out a lot more about the case. So… we put off the mediation for a few weeks. Hopefully, defense counsel will be better prepared when we resume.

But, with respect to this  mediation, time, money and most importantly,  a valuable opportunity – to settle at mediation – was wasted. This is a matter that should have settled: with a full diagnosis and prognosis, it would have been relatively straightforward to work out a resolution.

The moral of this tale is that before attending a mediation – be prepared. Conduct the necessary factual investigation and determine the outer boundaries of the dispute and of the various remedies. Know the facts – know where the liabilities lie and what the possible damages may be. Know the law, know the issues, know the strengths and weaknesses of your case, and last but certainly not least, have a settlement strategy in mind including an amount for settlement.

In short, do not come to mediation “winging it”. To do so will waste everyone’s time and money.

Mediators often work magic but they cannot create a resolution out of nothingness: the parties have to come to mediation with more than just an ephemeral desire to settle.

. . . Just something to think about.



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