Breath in. Mediation – what is it? In its purest form, it’s an alternative dispute resolution mechanism designed to resolve adversarial disputes. It’s also mandatory for an overwhelming majority of jurisdictions in South Carolina for cases pending in the Court of Commons Pleas. While it’s simple to think about mediation as “checking a box,” can it be more than that?
I was responding to emails later than I should have been one night and accidentally sent, “I have to meditate this case tomorrow, so I won’t be available until Wednesday”. Quickly, I realized my mistake and sent a quick email back apologizing for the error and correcting “meditate” to “mediate.” Freudian slip?
Mediation is more than just “checking a box.” If you have to mediate, maybe you should you meditate before you show up – and here’s why:
- Mediation is meant to take time by design. You may think you’re an experienced litigant or that you understand how the mediation process works. You probably don’t. I often hear “he’s been in the other room for an hour, why are we wasting our time here?” Mediation is a process. It takes time. After all, you’re paying some person you don’t know, who knows nothing about you or your case, to help resolve it. Be patient.
- Your case is not that good, even if your lawyer thinks it is. Mediation is a wonderful practice to smoke out the good and the bad of every case. Good mediators are masters at identifying the positives in your case but even better at identifying the negatives. That said, skillful mediators want you to believe the process is a zero-sum game to force you to compromise or “meet in the middle.” Know your case but know the pitfalls in your case better. Be willing to push back and accept your weaknesses at the same time. As cliché as it sounds, accepting your weaknesses may actually be a strength for you at mediation.
- Know your walk-away. You are NOT going to get everything you want. As you’re meditating before your mediate your case, think about what would need to happen to make you “walk away” from the mediation. After you’ve done this, then meditate again. How much are you willing to endure for the next year of your life or more? Are you sure you want to leave that money on the table because it is only ½ of what you’re asking for or willing to pay? Know your case before you walk in, and you’ll know how to put pressure on the other side(s). Walking away may actually get you what you want…
- Go to trial – if you’re ready. Did meditation not work? Mediation also fail? Be prepared for trial. After mediation, your lawyer should be diving headfirst into trial preparation. This should include taking additional depositions, subpoenaing witnesses, preparing trial notebooks and likely requesting a trial retainer. Did that last offer at mediation just look a little sweeter?
Meditate then mediate. Listen to your lawyer. Know your case – the good, the bad and the ugly. Trust the process and you may just get what you’re asking for. Breath out.