Questions To Consider Before Mediation

Thanks to Ron Kelly for these questions

These questions are to be completed by the principals personally. These are tough questions. Please allow several hours to think through and answer these questions in writing, thoroughly and honestly.

We have found that this review will guide your negotiations strategy and decision-making as cost-efficiently as possible. You may be asked many of these same questions later by the Mediator during the mediation.

Your written answers will not be provided to the other participants unless you authorize the mediator to do so.

A.  YOUR INTERESTS:

1.   List your basic interests, and then number their order of importance to you.  (For instance: time, money, security, get even, get on with life, minimize risk, fairness, future plans, maintain a working relationship, etc.). To help identify your real interest in each area, ask yourself - “Suppose they agree to what I want - exactly what will that do for me?”

2.   How do you think they see their interests?  List and then rank them.

3.   Any voluntary agreement will have to satisfy both your interests and theirs. Both of you will have to decide it’s a better choice than fighting. Where could you cooperate to do this, if you both decided you wanted to?

4.   What significant things do you think you already agree about?

5.   Where do you think you disagree most strongly?

6.   In these areas, what objective criteria could you use together to develop fair and constructive voluntary resolutions?

7.   How will you know when a potential agreement is a better choice than fighting it out? What criteria will you use to measure how well it satisfies the interests you’ve identified?

b.  YOUR UNDERSTANDINGS:

8.   From your perspective, what important understandings did you think you had when you originally got involved together? (Time, money, working conditions, rights and duties, decision-making, who was responsible for what, who was on the hook for the unforeseen risks, methods for resolving differences, etc.)

9.  What important shifts in these understandings happened as the situation developed, and where do you think their perspective differs from yours?

10.  What feelings of trust and goodwill supported your original agreements?

11.  Exactly when and over what did you first have any feelings of betrayal, bad faith, or loss of confidence? How strong are these still? Do you feel like they might owe you something to specifically make up for this?                                                                               

C. YOUR RESOLUTION:

12. In areas where you have sharply different perspectives, what useful evidence can you bring in that will be credible to them, to help them see your view? (Receipts, photographs, witnesses, notes, written industry standards, copies of laws or rules, expert reports, etc.)

13. What could they say or do in your meeting that would really push your buttons all over again? How will you keep things on track if this happens?

14. In resolving this, how will you balance your shorter term emotional interests with your longer term financial interests? (For instance: Are you willing to risk your future financial interests to avoid uncomfortable discussions now? Will you accept a satisfactory offer, even if you’re very resentful about how you’ve been treated? etc.)

15. If you’re unable to agree on a voluntary settlement, what do you currently believe is your next best alternative in the real world? You can make an informed choice between 1) the best voluntary agreement available and 2) your next best alternative - but only if you have a clear picture of each one. List as much as you can about potential risks and benefits of your most likely best alternative.

16. What are their next best alternatives?

17. List every issue which might reasonably be disputed if this is argued before a court, arbitrator, boss, etc. (Verbal representations, unforeseen problems, mistakes, different versions of facts, breaches of agreements, contract language, delay, scope and quality of work, interpretations of law, methods of calculating direct and consequential damages, coverage issues, etc.)

18. List the possible consequences of not reaching agreement. Suppose you’re unable to settle it between yourselves, you end up in the lengthiest and most costly alternative, and the judge, jury, boss, board, or arbitrator eventually agrees completely with the other side’s arguments.  For instance, what’s the maximum amount of your financial risk for:

a)   the difference between your likely claims

b)  everyone’s attorneys’ fees, expert witness fees, and procedural costs,

c)  the value of your time lost from work and family?

      If you don’t know, go get the most accurate information you can. It’s important.

19. How can the Mediator help you develop your best voluntary settlement? (Defuse emotions, and take some of the heat? Provide for safe and productive direct negotiations? Help you to break logjams, and generate creative options? Help you develop specific written language to ensure a lasting resolution?)

 Adapted from material copyrighted by Ron Kelly, Mediator (510-843-6074).