Alternative dispute resolution offers people and parties who are engaged in a conflict the chance to work things out without going through the trial process. When the situation involves international disputes, mediation can be particularly helpful and it prevents them from having to deal with more than one court system. There are ways to make sure the mediation process goes more smoothly for domestic and international disputes.
- Do not expect the process to be cooperative. Many people assume that when they go into the mediation process, the goal is to make sure everyone gets something. This is often referred to as a “cooperative negotiation.” The problem is that hinges on both sides being completely honest. It also relies on there being a decent amount of luck. Knowing this, you should approach the process as being competitive, rather than cooperative, if you want to get the best results for your side. Going in with the realization that it will be competitive will be in your best interests.
- Remember, your negotiations will start long before mediation begins. This is true in all sorts of negotiations from domestic to international disputes. That means you need to be careful with what you say to the other side throughout the process and before it even starts. Do not give away any information about how much your side is willing or not willing to pay. Even an off hand comment about what they may or may not be willing to pay out will be used against your side during the mediation process. You are in a better position if you play your cards closer to to your vest in this regard.
- Avoid getting into the meat of the case on the phone. Again, off hand comments can hurt you when you get down to the mediation. You also do not want to give the other side too much insight into your thought process about the case at hand. If you let it slip that you think not all of your case is as solid as it could be, you cede some of your power to the other side. Experts in standard mediation services will tell you that this is never a good thing. The only people who need to know what you are thinking and how you view your case are the people who are on your side.
- Keep your ego in check. It is easy to be overconfident when you go into the mediation process. In fact, this is a universal problem for lawyers. New research shows that the majority of attorneys are more optimistic than they should be about their chances for winning a case and how much they will recover. This is not an issue that is limited to inexperienced attorneys. When you approach the mediation, you should know that you have no more than a 50% of being successful and even that is an optimistic number.
- Start out with a great mediation summary. This means it is neutral, is not too long or contain too much technical jargon and has all of the pertinent information. When dealing with international disputes, you do not have to list every case that is similar to yours to make your point. If you find a case that speaks directly to the case you are working on, you should include the exact text and not paraphrase what it says. Your summary needs to have the main points, defenses, claims and facts. You will want to touch upon related cases, any previous negotiations that occurred between the involved parties, your experts who will testify and any offers that have been put on the table. Talk to the mediation services about maintaining the confidentiality of the document.
- Get your opening statement right. You want to persuade people, not offend them. Your opening statement should only focus on the facts of the case and not cross into the territory of being too caustic. One way to think about this is to compare the performance to that of a professor at a university. The tone needs to be serious and informative.
There are a lot of ways going through the mediation process is better than going to trial. It just takes more preparation than many people realize.