Readings:

Cooley, J. 'Mediation Advocacy' NITA 1996 @ 86-96

Preparing yourself for mediation

Any brief that you prepare for your own purposes should include the following:

• a statement of the issues as your client understands them
• your legal position (including an assessment of the client's BATNA (Best Alternative to a Negotiated Agreement) and WATNA (Worst Alternative to a Negotiated Agreement)
• the client's underlying interests
• possible options, components of a settlement package, assessment of any 'bottom line' issues and amounts
• what will be included in the opening statement (below)
• a possible agenda for the mediation meeting

Preparing your client for mediation

• ensure that your client understands the purpose of mediation, the form the session will take, your role as advocate in the mediation session, and is clear that he/she may withdraw at any time
• appraise all aspects of the mediation brief with the client, including an assessment of legal costs to date
• develop realistic expectations for the outcome of the mediation process
• prepare the client for a possible showdown - anticipate any personal animosity which might be a factor in the mediation.
• discuss with the client who will make and what will be included in the opening statement which is generally presented by each side at the beginning of mediation.
• discuss the client's level of participation and contribution throughout the mediation.

At this stage you are advised to listen to Janine Higgin's comments on how to structure an effective opening statement and and what to include. This 20 minute lecture can be found on the first section of the audiotape that is included with the course package.

You may also find it helpful to read 'Tips for developing an effective opening statement' (Macfarlane, 1996) contained in the Course Manual.

What might you include, and how would you frame, an opening statement as either

a. the plaintiff

b. the defendant

in the Construction Site dispute case study contained in the Course Manual?

To discuss possible openings - what you would include, how you would frame your issues, what you would leave out, what tone you might adopt in addressing the other side - please join Discussion Room Five. This is also the forum for discussing any other issues that relate to the preparation of both yourself and your client for participating in mediation, whether these arise out of the class notes, the reading for this topic, or your personal experiences.