10 Things to Remember When You Mediate

I have been in mediation a lot over the last few weeks, sometimes as a lawyer and sometimes as a mediator.  Here are 10 things I think you need to remember when you mediate.

1.  Be prepared.  This is not something for which you just show up.  If you need documents, bring them.  If information needs to be put in a spread sheet, get it done.
2.  Know your bottom line.  What is it you can't live without?  That helps you focus on what is important and necessary.  It makes sure you don't forget it.
3.  Know what is expendable.  What can you give up in the interest of reaching an acceptable solution? Not everything is of equal importance, and you will have to compromise.  Some things are nice to have, but it won't kill you not to have it.  What is that organizing experts say - if you haven't seen it in a year and don't miss it, then you don't need it.
4.  Let go of the word "fair."  Life isn't fair.  If life were fair, you wouldn't need to attend mediation, but there you are.  The word is too darn emotional, and means different things to different people.  Embrace the word "acceptable."
5.  Resist the need to tell the mediator your entire story.  If it's not information that will help reach an agreement, it doesn't need to be shared in mediation.  Sometimes, at least part of the story has to be told, but all of it rarely does.
6.  The reason for #5 is that you need to remember that the mediator is not a decision maker.  They understand that there are deep feelings on both sides underlying a dispute, and they feel for you.  They are, however, a neutral whose job is to help you and the other side reach agreement.  Telling the mediator over and over again what a SOB the other side is (and providing copious details in support) does no good and wastes time and energy.
7.   You still need a lawyer.   Even if the mediator is a lawyer, they can't give you legal advice.  You need someone who can - your own lawyer.  There are plenty of mediation friendly lawyers out there who will advise you and not torpedo the process.
8.    Don't measure success by whether you resolve all of the issues in your dispute.  Sometimes you can't, but any issues you can resolve on your own are better than those a judge decides.  Plus, if you have to go to court, it will save you time and money if you have fewer issues to resolve.  In my book, if even one issue is resolved, mediation is a success.  Adopt that philosophy.
9.    Stick with the process.  Sometimes it feels like you're not making process.  It usually feels the most hopeless right before all the pieces start to fall together.  Be patient.
10.  Remember that although mediation is less combative and confrontational than litigation, it is not an easy process,  It requires you to advocate for what you need and communicate, with help, with the other side.  It is hard work.