Preparing for Mediation

Understanding Mediation

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Mediation: A Tin Can Phone Metaphor

Remember the simple wonder of a tin can phone as a kid? For it to work, you had to find a delicate balance. The string had to be pulled taut enough for sound to travel—for the vibrations of your voice to actually reach your friend on the other end. But you couldn’t pull it so tight that the string would snap, or your friend would lose their grip on the can.

This simple toy is a perfect metaphor for a relationship—the relationship between two kids with a common goal: to play together. The phone is the link between them, their tool for communication. But like any form of communication, the signal can get muddled. A loose string might cause a muffled message. An obstacle might block the vibrations. Then, the fun game of talking turns into something else entirely. The string snaps, and suddenly, the two willing participants are left shouting into their cans, unable to hear anything but their own frustration.

This is where the “string of communication” breaks. The cause could be anything—a careless tug, a strong gust of wind, or maybe the string was simply too thin to begin with. What happens next is crucial:

Do the kids blame each other? Do they demand that the “culprit” fix the string on their own? Do they simply give up and walk away, abandoning the game? Do they call an adult to decide who is right and who is wrong? Or does a trusted friend step in?

This third person doesn’t take a side or tell them who is to blame. Instead, they help the kids calm down, listen to each other’s frustrations, and work together to find a new, stronger string. That trusted friend is the mediator. The goal isn't for the mediator to fix the problem for you, but to help you find a new, stronger “string” of communication. The mediator empowers everyone involved to rebuild trust and re-establish dialogue, so you can work together to find a sustainable solution—whether that's mending the relationship or parting ways amicably.

Pre-Mediation Call

The goal of a pre-mediation call is to set the stage for a successful and efficient mediation. It is a preparatory step that helps the mediator and the parties (often through their legal counsel) ensure that everyone is aligned on logistics, process, and key issues before the formal mediation session. This preliminary conversation is crucial for minimizing surprises, building rapport, and maximizing the chances of reaching a resolution. The call will last about 1 hour, and a lot of things need to be covered:

Understanding Dispute and Clarify Key Issues

Case Background: I will ask to briefly summarize the dispute, its history, and the current legal or procedural status.

Core Issues: We will discuss the primary points of contention. This help prioritize the issues and give us a sense of time needed for the session(s).

Prior Settlement Discussions: Did you attempt negotiations in the past? What were the sticking points or impasses?

Logistics and Participation

Who will attend? We need to confirm that all necessary parties with full settlement authority will be in attendance, whether in person or virtually. This is particularly important for corporate or insurance cases where a representative might need to consult with a superior.

Settlement Authority: We need to confirm that the individuals attending have the authority to make a final decision and sign an agreement on the day of the mediation.

Logistics: This includes confirming the date, time, duration, and location (physical or virtual), as well as any special needs or accommodations.

Gauging the Emotional and Interpersonal Dynamics

Mediation is as much about human relationships as it is about legal facts.

Emotional State of the Parties: What is the emotional history and current emotional state of the parties? Are you/they angry, anxious, or particularly stressed? This insight will help me anticipate potential roadblocks and determine if a joint session is even appropriate.
Client Goals and Interests: I will ask you what you hope to achieve, moving beyond the stated legal position to the underlying interests. For example, your "interest" might be a public apology or the preservation of a business relationship, not just a monetary settlement.

The Mediation Process and Expectations

We'll finish the call by clarifying the process and managing expectations.

Reviewing the Process: I will tell you what the mediation session will be like, and we'll discuss the process. The process may change as I might decide before or during the session to try another method. For example, I may decide to skip the joint session and do caucuses (private sessions) if I feel a high level of animosity between the parties.
Mediator's Approach: I'll remind you that I am a neutral facilitator and not a judge. I'll tell you a little bit about my style, and we will gauge what it will mean for me to create a safe space for you.
Written Submissions: I will provide instructions on what written materials to submit before the mediation, such as a mediation statement, and set a deadline for their submission.

Mediation Statement

Before mediation, I will ask you to prepare a statement that summarizes the case from your perspective.
I will not share this statement with the other party, but you may choose to do so yourself.
This statement will help you organize your ideas and can be used for your opening statement during the mediation.

When writing your statement, focus on clarity and conciseness. State your perspective of the situation, the key issues you believe need to be addressed, and what you hope to achieve in the mediation, all without resorting to emotional language or personal attacks.

Here are questions you may want to ask yourself when preparing this statement:

What is important for me to share during mediation?
Unlike in court, where parties have a limited opportunity to speak, mediation gives you an opportunity to talk about what really matters to you. It may be useful to know ahead of time what you’d like to talk about (or to hear another person at the mediation talk about).

Your / their experience
How you / they have been impacted
How you / they are feeling

What do I expect from the mediation?
In most cases, a court can only order money damages if they rule in favor of a plaintiff. In mediation, you may ask for other things that are often not available in court, like:

Explanation
Apology
Items returned
Better relationship
End of a relationship (no contact)

Do I want money retribution? How much?
If you want monetary reparation, be ready to justify how you came up with the amount.

What if mediation fail?
Before attending mediation, it is helpful to understand what your options are if mediation doesn’t result in a settlement. What if you don’t settle the case in mediation?

What proof should I bring to mediation?
Bringing communication, receipts, and other proofs may help during mediation.

Remember that the mediator will not pick sides and will be asking all parties about what they have experienced and what they want to get out of mediation.
Be prepared to listen to what the other party has to say. Listening and waiting to talk are two different things! Listen with the intent to understand, not preparing your reply.

Getting Legal Advice

Speaking with a lawyer before or between mediation sessions is recommended.
You may also bring a lawyer to mediation. The Court website of your state may be a useful resource in how to find a lawyer or how to get legal information.

If you cannot afford an attorney, you may want to visit the following website: https://www.LawHelp.org. This website lists legal services organizations. Many offer legal advice and services for free or low cost to those who qualify.

Please note that court employees cannot give you legal advice. Court employees cannot decide if mediation is right for you. Court employees cannot tell you which individual mediator you should choose.

Mediation Participants

Who needs to be at the mediation? Mediation works best when the right people are present. This usually includes:

Parties to the case – anyone who has been named in the court case. Parties and/or their attorneys should always be present in mediation.

Attorneys – parties’ legal representatives. It is up to each party and their attorney to decide whether the attorney will attend. No other party, or the mediator, can restrict their attendance.

Other stakeholders – people who are not named in the case, but who are involved in the subject matter of the case or who might be affected by whatever is decided. All parties and the mediator must agree on their attendance.

Support people – people whose main role is to be of support to the parties. All parties and the mediator must agree on their attendance.

Interpreters – people whose sole function is to aid people with different primary languages to communicate in mediation.

If you need language assistance, the court will help provide an interpreter if (1) your case has already been filed in court; and (2) the court has referred your case to mediation. Contact the local court clerk or the local ADR coordinator for further assistance.

In most cases, it is not appropriate for those who would only serve as witnesses in a trial to attend the mediation.

During Mediation

Process

I will start with a 5-minute opening statement covering the basis of the mediation and remind everyone about confidentiality. I will also remind everyone my role, which is to guide the conversation, manage emotions, and help the parties find common ground.

Then each side will have an opportunity to present their perspective. During that time, I will ask the other party not to interrupt. The duration will depend on the complexity of the case. I will occasionally ask questions and summarize what is said.

Following this, I will hold “Joint Sessions” with all parties or “Caucuses” which are private, confidential meetings with each party separately. Caucuses allow each side to speak freely and discuss sensitive information with the mediator without the other party present.

Dress Code

Be comfortable but show everyone respect for the process.
Dress to create a professional and respectful atmosphere.

If we hold the session online or in a private office, business-casual attire is best.
If we hold the session in a courthouse, more formal attire will work best.

What to Bring to Mediation

Relevant Documents: Any documents that support your position, such as financial statements, tax returns, contracts, invoices, or other legal documents. Bring any notes you prepared.
Notes and a Pen: Bring a notebook and pen to take notes, jot down thoughts, and prepare questions for me or your attorney. At the negotiation stage, I will ask you to write down possible solutions.
Identification: A government-issued ID might be required to enter a building, for formal proceedings or to notarize a settlement agreement.
Personal Items: Bring a bottle of water, a snack, and something to distract you during a lunch break such as a book or tablet and something to help you cope with stress like fidget toys.

How to destress before and during mediation?

Mediation is emotionally taxing. Here are some techniques to help you to relax:

Breathing Techniques: learn the “4-7-8 breathing” technique (inhale for 4 seconds, hold for 7, exhale for 8) or focusing on deep, rhythmic breaths.
Take Breaks: I encourage you to take a break whenever you feel overwhelmed. Go out for a walk, climb some stairs, get some fresh air, or simply go to the restroom and splash cold water on your face.
Shift Perspective: Easier said than done, but try not getting caught up in personal feelings. Try to stay objective and focus on the facts and the ultimate goal of resolution.
Set Realistic Expectations: Remind yourself that a successful mediation often means compromise and that the final outcome may not be exactly what you initially wanted. The goal is to reach a resolution that is better for everyone involved than continuing the dispute.
Lean on Support: If you have a lawyer, rely on their counsel for guidance. If you have a trusted family member or friend, you can call them during a break for support, but be mindful of the confidentiality of the proceedings.

How to think about arguments

"When you go to a conversation, have something to learn, not something to teach."
"An argument is a window into another person's struggle"
- Jefferson Fisher

About mediation

Robert Mnookin articulated the 3 types of tension and how mediation can help.

After Mediation

What happens after the session?

If an Agreement is reached:

If you and the other party reach an agreement, I will draft a document called a Memorandum of Understanding (MOU). This document outlines all the key terms of your agreement. It's often drafted at the end of the session, and both parties will review and sign it right there.

I will then send this MOU to your attorney, or to an outside attorney, who will transform it into a legally binding contract. This final contract is a formal, legally enforceable document that will be sent to both parties for signatures. If your case is already in court, this agreement will be filed with the court to become an enforceable court order.

If no Agreement is reached:

If you don't reach a full agreement, you will need to decide on the next steps, which could include another mediation session, arbitration, or proceeding to litigation.

How you might feel

The feelings after mediation can be complex. You might feel a sense of relief and closure, as you've avoided the uncertainty and cost of a long court battle. However, it's also common to feel some discomfort or even a sense of dissatisfaction. This is because mediation often involves compromise, and you likely didn't get everything you initially wanted. This feeling is a natural part of the process—you've made a decision you can live with, rather than one that feels like a complete win or loss.

What you should do next

Review the Agreement: Carefully read the draft agreement before you sign it and consult with an attorney.

Fulfill the Terms: Once the agreement is signed, it is crucial to follow through on your obligations. This includes any required payments, transfers of assets, or other actions.

Take Time for Yourself: The mediation process can be emotionally and mentally taxing. Take some time to decompress and process the outcome.

Look to the Future: By reaching a resolution, you have taken control of your situation and can now focus on moving forward. The resolution you achieved is one you had a hand in creating, which often leads to a more sustainable outcome in the long run.

Schedule a Consultation!

They say marriages are made in Heaven. But so is thunder and lightning.

– Clint Eastwood

Courage is what it takes to stand up and speak. Courage is also what it takes to sit down and listen.

– Winston Churchill

Marriage means expectations and expectations mean conflict.

– Paxton Blair

Whenever you’re in conflict with someone, there is one factor that can make the difference between damaging your relationship and deepening it. That factor is attitude.

– William James

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