Here is a checklist of 10 items you, as CEO, should heed as you prepare for the mediation:
1. Know your case. While there are strong cases and weak cases, there is no such thing as a slam-dunk case. You need to know the strengths and weaknesses of your case. Legal counsel’s job is to analyze them and explain them to you. You will settle for something less that you might, on a good day, achieve in trial, but you will also settle for a lot more than could result on a bad day in court.
2. Know your adversary’s case, and understand it as if looking at it through your adversary’s eyes. Think about what may be driving the other side.
3. Think about what is important to your company and to the other side. Is it all about money, or are there non-monetary considerations?
4. Expect the mediator to listen to you. If he/she does not listen actively, attentively and empathetically, get a new mediator. If a mediator says, “Let’s cut to the chase,” walk out.
5. Be prepared to participate in the discussions, both in joint session with the other side, and in caucus sessions with your side and the mediator. Your lawyer should not have to do this job for you. Don’t forget – what is said and done is confidential.
6. Listen to the other side (to gain insight into what they may be willing to settle for), the mediator (who will not opine as to whom may be right or wrong, but will help you explore settlement alternatives) and your attorney (whose analysis of the strengths and weakness of your case is important); but make up your own mind. Remember, it’s your company’s case.
7. Agree to meet initially in joint session with the mediator and the other side. That meeting is your opportunity to size up the other side, and their opportunity to size you up. Deep seated loathing, distrust and resentment should not keep you from confronting your adversary.
8. Where there may be a continuing relationship (voluntary or involuntary) with the other side, be alert to the opportunity to do a deal on top of a settlement.
9. Do not allow yourself to be coerced into settling. Mediation is an entirely voluntary process.
10. Come to the mediation prepared to negotiate in good faith.
The mediation process works, especially when the CEO participates and is prepared. From the standpoint of a cost-benefit analysis and satisfaction with the result, the mediation process beats litigation hands down.
