Back in my school years, there was a lecturer who was very much loved by students for reasons of his style. So smooth was he at his lecture presentation that there was often the temptation to get carried away and take little or no personal notes. The lecturer himself did not help matters as he always assured us that it was no time to worry whenever we asked him for areas of concentration for our forthcoming exams. He assured that he would let us know when it was time to worry. Those who took the risk of awaiting his time to worry perhaps have a different story to tell now.
I have recounted this interesting experience because of the ease with which one can be carried away by the interesting stories of the mediation process. Mediation stories published here and elsewhere can be misinterpreted to mean that parties may just walk into a mediation process without adequate preparation. If you do, you are bound to fail in your quest for a fast-track amicable dispute resolution or to achieve an outcome far below what is possible.
For substantial outcomes at mediation you need to master the facts and the laws that relate to your case. While you may not be bothered about legal precedents or the rules of evidence that can preclude you from certain submissions inconsistent with the evidence act, you nonetheless need to know the law as relates to your rights and your obligations. This is even more so because every case at mediation must necessarily have a legal foundation. Skillful presentation of your case is as important in mediation as it is in a courtroom. The only difference is that these are not tailored along any prescribed or technical lines
The likelihood of failure at mediation also arises when parties enter the process with unreasonable expectations. Because of a long history of ambitious but sometimes unrealistic claims in litigation, disputants are wont to present claims they cannot justify in real terms. You set yourself up for failure when you cannot ascribe actual costs to monetary demands from respondents. Where you engage the services of a mediation advocate, it is his primary role to assist you to manage your expectations even before you come face to face with the respondent. Mediators also play this role in caucus or private meetings through reality testing.
The importance of an open and active participation in the mediation process can never be over emphasized. Do not misunderstand the intention of the confidentiality provisions to mean that you should confide only in the mediator through the session. Confidentiality in the actual sense relate to third parties who are not present in the room. Do not keep useful information away from your opponent or the mediator. Do not open up to the mediator in private session and classify all information you pass to him as confidential. Though it is within your rights to do so, it can nonetheless be counterproductive. When you do that you shoot yourself in the foot and present inadequate information for your opponent to make informed decisions on the outcome you wish to obtain. The flipside of this is to distrust the mediator. Some disputants become doubtful of the mediator’s neutrality when in private session the mediator asks tough questions which challenge their positions and available evidence. They take the position that the mediator may have become biased or are on the pay roll of the opponent. They do not know such actions of the mediation referred to as reality testing are designed to make them think through the validity of their claims and to adjust same where desirable.
One writer has suggested that your “trial bag” for the mediation should contain a settlement agreement that you reviewed before the mediation. He is of the opinion that you should prepare a draft terms you desire to include in any final settlement agreement. He argues that this method might be helpful to enable you articulate all of your priorities as you prepare to go in for the mediation session. This format may indeed be of assistance as the dynamics of the mediation and counsel misapprehension of client’s best interest may occasion errors in the draft settlement terms which party may not have had the presence of mind to make corrections.
Before rounding off on these few points on how not to mediate, it should be stated that it is also of importance for parties to acquaint themselves with the practice directions of the mediation institution where the parties wish to resolve their disputes. Though the framework of mediation is generally uniform, there are certain usages of the respective ADR Centres that may recommend one as better than the other.