Many of us have heard the saying “If you fail to plan, you are planning to fail.” Unfortunately, many mediators do not think the same way when it comes to mediation and preparing for the process. Michael Carbone, a veteran mediator with over 20 years of experience, admitted to making the same mistake. Carbone said he never required counsel for the parties to participate in the pre-mediation conference call. Only one of the many mediation training sessions Carbone had participated in mentioned the importance of a pre-mediation conference call. Since it was only mentioned once and not many other mediators included counsel in the calls, Carbone also thought going the extra step was unnecessary.
A few years ago, Carbone decided he would include all parties involved in the mediation in his pre-mediation conference calls. This was the moment Carbone learned that he had been making a mistake for years. No one had ever refused to participate in the conference call, but Carbone just never saw the benefit of including everyone. With all parties involved on the call, Carbone soon came to realize that the mediation process proceeded a lot more smoothly. The pre-mediation call allowed the clients and their counsel to adequately prepare for the process. Some of the mistake that are often made as a result of the mediators and their clients not being prepared to mediate include:
- Failure to set aside enough time for the mediation process
- Not bringing the right people to mediation, especially if the key decision-makers are not present
- Failing to send a copy of the mediation brief to all parties and making sure everyone understands the process
- Not ensuring that all parties have the necessary information to make an intelligent evaluation of the case
- Not having a first draft of the settlement agreement prepared
These mistakes and many others can be avoided by planning ahead and participating in a conference call. A pre-mediation phone call is designed to help all parties feel more comfortable with the mediation process. Some other issues that can also be discussed during the pre-mediation conference call are:
- Background and qualifications of the mediator
- Attitudes and behaviors of the involved parties
- Parties’ conflicting goals and demands
- Possible limitation on ability to settle, such as the absence of decision-makers
- Details about the mediation session, such as preparing an agenda
- Addressing any questions or concerns of the parties or their counsel
We hope this article helps our clients better prepare for their mediation sessions. If your mediator does not include your counsel in a pre-mediation conference, it is highly recommended you ask him or her to do so. Perhaps sharing Cardone’s experience will change their mind. Not only can your counsel gain more information about the process through the call, you can also feel at ease about preparing for the mediation. Also, do not forget to voice any concerns you have about the mediator or the session beforehand.