The Mediation Room: Preparing for Mediation Means Focusing on Positive Outcomes

Steve Forrer, Ph.D. Final         5/7/22   548 words

If you select mediation either privately, or through the Talbot County District or Circuit Courts, you will need to do some homework. Mediation is not magic. It’s hard work.  Benjamin Franklin said it best, “By failing to prepare, you are preparing to fail.” Once you have committed to mediation the best way to insure an efficient and positive outcome is to spend time preparing.  There are lots of things to think about.  Here are a few.

Think about the issues.  Enter the mediation with an understanding of the situation. Gather your facts and documents. Objectively consider the events that led up to the conflict, and the facts as you recall them. This will help sharpen your point of view.  It also offers insight into the other participant’s thinking. Consider how they might see the facts. It will be helpful in reaching an agreement.

Prioritize potential outcomes.  Those highest on the list are likely your “needs.” Needs are conditions that would be hard for you to give up.  Lower on the list are your “wants.” These are the “nice to have” conditions, but not critical.   Since compromise is part of the mediation, do not expect to get all your wants. Remember, needs can become wants based on the discussion. Avoid coming to mediation with pre-determined bottom lines… “They are not getting one penny.” Absolute boundaries will only limit resolution and mediation is likely to fail. When you agree to mediate you are looking for a result that is acceptable. It will not be perfect. 

Consider your emotions. By its very nature, conflict or disagreement is emotional.  The challenge is to keep your emotions from hijacking your ability to make good decisions. Thinking about what triggers your emotions ahead of time, and anticipating them can help you avoid getting caught in the emotion trap.

Consider others attending. If you have one, you many want your attorney to attend with you. In complicated mediations they can advise on legal matters. The mediator cannot provide legal advice. It is also important that all the parties that have the authority to settle the dispute are present. This not only communicates the willingness to seriously mediate, but avoids confusion and delay. 

Consider what happens if there is no settlement. Consider the cost and time required to go to litigation. In the Maryland Courts COVID has backed up court dates by months.  Further, there is the real possibility you may not win. It is hard to predict a judge or jury determined outcome. Going to court will provide resolution, but it will be very narrow.  Mediation will provide much more flexibly. For example, one party may want an apology or a confidentiality clause. The court is not likely to offer either condition in its narrow decision. Successful mediation allows both parties to move on with their lives and leave the stress and ambiguity of the disagreement behind.

Although it sounds obvious, get a good night’s sleep the day before. Mediation can be long, emotional, and exhausting.  The process is hard work and requires all parties to concentrate and focus on a positive outcome.

Steve Forrer lives in Easton and is former Dean and Vice Chancellor of University of Maryland Global Campus. He is  currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted at www.doncastermediation.com/contact for Steve to answer in this column. He also accepts private mediations.