If you have a conflict that is headed to mediation (including an investigation with the Human Rights Bureau, which will attempt to mediate the case before they decide it), preparation is key. This includes not just getting facts organized; you also need to have your goals clearly articulated.
Before you talk to the mediator, whether in a pre-mediation phone call or in a caucus (separate session), be prepared to discuss these things:
- – What is truly confidential? If you don’t want the mediator to discuss something with the other party, know this and tell the mediator.
- – Are there likely to be any ugly surprises raised during the mediation? If so, know how you will handle it and decide whether or not you want to tell the mediator before it comes up.
- – Is there any bad news you want the mediator to break to the other party? It’s not the best way to communicate, but sometimes it is the most efficient.
- – If you have an attorney, does he or she know the whole story? Attorneys will do a better job if they know all the pertinent facts and can frame the case accordingly. They don’t like to be blindsided by facts known to their clients but not to them.
- – If there are non-attorney support people in the mediation, not parties to the case, be aware that mediator confidentiality may not be binding on them. Consider if and when you want them to leave the room so that they can’t be called to testify later if you don’t settle.
Above all, know your real goal. What really matters to you, regardless of the position you have staked out? Are there other ways to accomplish your goals? This can range from simple things like accepting payments over time to larger arrangements that substitute labor for cash. Is the cash really what you want, or is it an apology, a problem rectified, a friendship re-established? (And be sure your attorney knows this, too.)
Knowing your goals and how you want the mediator to use information greatly increase the chances of a successful mediation and settlement that allows you to skip the ordeal of going to court. A little preparation ahead of time can save you a lot of work later on.