The resolution of a dispute does not just occur on the day of the mediation. Each participant to mediation needs to prepare their own strategy for negotiation in the settlement. Based on my experience as a mediator, these are a collection of tasks each participant needs to complete and to discuss with their council and the mediator before the mediation.
These tasks and the discussion with the mediator are confidential. They are confidential under both Attorney Client privilege and under mediation confidential provisions in court rules, statutes, and standards.
Task #7: What do you truly disagree upon with your mediation opponents?
In Task #6, you were asked to search for some potential common ground you might have with your mediation opponents to help facilitate a voluntary agreement to settle this matter. Now you need to flip the question around and come up with the significant issues that you disagree upon.
Strangely enough this will help the mediator to focus the mediation session upon the real and lasting issues of the dispute. Then everyone can focus on the task at hand to develop together a voluntary agreement to resolve the dispute. For example, breach of contract might be agreed upon, but whether it is a major or minor breach is the true disagreement. Likewise, there might not be a disagreement on liability but it is the measure of damages that is the true dispute. Even then, there might be considerable agreement.
Review these disagreements with your attorney and confidentially with the mediator.
About the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator. He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment. He is also a Mediator and Arbitrator for FINRA.
© 2013 Ken Strongman. All Rights Reserved. Please do not copy or repost without permission.