Pre-Mediation Communications

Module 2, of New York Law School's "Representing Clients in Mediation,” provides valuable tips on pre-mediation session communications with the mediator.

You might also consider the following additional points:

• Mediation is a process. The mediation session is an event at or near the end of the process. Starting the process well before the session can increase prospects for success.
• Pre-session communications can maximize information exchanges and explanations of positions that will make the mediation session more effective. The discipline of articulating those positions can help counsel focus on the client's goals and better use the mediation process to achieve those goals.
• In deciding whether pre-session communications should be written or oral, consider what will be most helpful to the mediator, and what will be most efficient for counsel and the parties, who are paying for the process.
• The sharing of written mediation statements can enlighten the other side and increase trust by revealing assumptions, which can then be discussed with the mediator before the session.
• Caucusing with counsel (and including the client, when possible) on video conferences before the session can expose the strengths and weaknesses of a client's positions (which are sometimes hard for counsel to discuss directly with the client), develop negotiating positions, and build trust with the mediator.
• Joint pre-session video conferences with both sides can further foster understanding and a narrowing of issues. Joint pre-session conferences sometimes jump-start negotiations. Some disputes can be settled before the mediation session, saving time and money and avoiding unnecessary conflict. Mediations don't have to be hard.

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