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In today’s article I will share how NOT to prepare for your mediation. 

I have a video on Youtube about the basics of mediation, and if you haven’t seen that one, I recommend you check it out first. 

Today, I want to share with you some ideas about how not to prepare for your mediation. 

These are some common mistakes that I’ve seen over the years and maybe some things that your lawyer hasn’t gotten around to sharing with you. 

You Don’t Have To Settle At Mediation

A judge may have sent you to mediation in the first place, but that doesn’t mean you have to settle your case there. In fact, even cases that do settle as a result of mediation, often don’t settle at the mediation itself. 

Even when the parties are close to a settlement at the mediation itself, it often takes a few more back and forth sessions afterwards to wrap things up and settle the case. 

The good news for you is that this back and forth is usually done by phone or email, so that you don’t have to spend another day locked in a conference room with a bunch of lawyers. 

With that in mind, here are a few suggestions to keep you sane and make the most of your day at mediation. 

Don’t Get Too Excited For Closure

Don’t get too excited. In fact, you should prepare yourself to be patient and to be bored. Except in the simplest of cases, mediation can be a drawn out process, which takes up most of the day. 

There are going to be long stretches of time where the mediator is working with the defense in another room, and there’s absolutely nothing for you to do. 

Back in the day, we used to encourage people to bring books or crossword puzzles. But with a smartphone, you should be able to keep yourself busy. 

  • If you have something you like to do with your hands, say knitting for instance, even better. Make sure you keep yourself comfortable, dress in layers, because the room could be really hot or really cold, no matter the season. 
  • Wear comfortable shoes and be mindful of your injury, if you hurt your back, make sure that you have whatever ice packs or other supportive devices that you need to spend the day in a conference room. 
  • Keep your favorite snacks handy and drink plenty of water, because there’s nothing worse than having low blood sugar at a key moment during your mediation. 

The Benefit Of Preparing For Bordom

The point of all this is that you, as the plaintiff, have the least experience with mediation of any one in the room. 

And the defense and even the mediator, can take advantage of this

A tired and irritable plaintiff can wind up making choices they regret, at the end of a long day. Don’t be that person who settles their case just to get it over with. 

View Mediation As A Step In The Legal Process

Don’t expect to settle your case. In fact, your best bet is to think of mediation as just a bump on the road to trial. Just like a deposition or a hearing, it’s just something you have to get through en route to your final destination. 

You can think of settlement at mediation as nothing more than a happy accident. 

Many years ago, I brought a client to mediation, I introduced her to the defense attorney at the start of the day, and the first thing she said was, “I’m so glad the case is going to be over today,” well, it was, but she left a lot of value on the table by saying so out loud. 

Act More As An Observer At Mediation.

Finally, talk less and listen more. Most honest people are under the impression that if the defense lawyer or insurance adjuster simply understood what really happened, they would pay up fair and square. 

And so these folks go to great lengths to get their story out. When in reality, that’s not such a good move, because the more you talk, the more openings you give the defense to argue that the crash was your fault, that you weren’t hurt or maybe you were hurt already before the crash. 

Silence is golden. 

Think of mediation as a listening exercise. 

What can we learn from the defense about the positions they intend to take at trial? 

And what can we learn about the evidence that they intend to use to support those positions? 

You may not settle your case at mediation, but it can always be a valuable experience if you’re willing to be patient and listen carefully. 

Summary: Three Things Not To Do At Mediation

  1. Don’t become tired and impatient. 
  2. Don’t expect to settle your case. 
  3. Don’t talk more than you listen. 

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