- Know your client and select your mediator accordingly. If your client is female, feels controlled by men and both attorneys are men, a female mediator should be considered. If a male party is former military, a hunter, a “man’s man”, select a male mediator with whom the male party can relate. Study a potential mediator’s vita and background and select appropriately. If the parties are business people who wear high dollar clothes, inform your mediator and ask your mediator to dress accordingly. On the other hand, if the parties are ranchers or horse people, ask your mediator to wear jeans, a sport coat and boots. Your mediator’s ability to relate well with both parties is important to the success of the mediation.
- Are you prepared for the mediation? Do you have a current, well documented inventory and spread sheet? If value is an issue, do you have a current appraisal or only what your client thinks something is worth? Is the retirement plan a defined contribution plan or defined benefit plan? If a defined benefit plan, would a shared interest or separate interest be better for your client? Who is the designated beneficiary of the retirement plan and what steps must be taken to change the beneficiary? If you do not know, you are not prepared to mediate. To change a beneficiary, TRS requires the use of TRS forms and magic words in the Decree. See the September Gregory Negotiation Report on Effective Negotiation and Preparation. See the October Gregory Negotiation Report on TRS Retirement Beneficiaries. Prior reports are available at www.dentofmailylaw.com
- Are there sacred issues or values involved in the mediation? If yes, inform the mediator and discuss ways to deal with those issues. For example, a party attempting to mix children issues with property issues by connecting parenting time to property division is typically making a big mistake. Are there hot button issues, which need to be dealt with in a sensitive appropriate manner or avoided all together?
- What are the contested issues, your client’s goals and the interests underlying those goals? What is your client’s BATNA, best alternative to a negotiated agreement? What are the answers to the same questions from your opponent’s perspective? If you do not know the answers to these matters, you are not prepared to mediate and are not adequately representing your client. See the November Gregory Negotiation Report, Getting the Interests Right.
- Respond promptly to the information requested by your mediator. Responding forces you and your client to prepare for the mediation and helps the mediator prepare for the mediation. After all, the purpose of the mediation is to reach an acceptable agreement.
Negotiation Tip: If you employ Timely, Thorough, Thoughtful Preparation, you help your client and your mediator and increase the chances of a successful mediation. In the process, you enhance your reputation as an effective lawyer and negotiator.