Good negotiators, like good attorneys, know that preparation is key. Whether negotiating directly or with the aid of a mediator, there is no substitute for thorough preparation. Preparation is important for a mediator, as well. One of the most underutilized methods of preparation is the mediation pre-meeting. And, as we will see, it is incredibly helpful in any mediation.
Whether the mediation is in-person or virtual, in whole or in part, getting together with the mediator before the mediation is important to the success of the actual negotiation session. In my experience, this is most successful with just the attorneys, meeting with each “side“ separately.
This pre-meeting is an important part of the mediation though no negotiation is taking place. So, why meet? It helps the lawyer and the mediator prepare for the negotiations to come. This is a great time to discuss logistical matters, including but not limited:
The pre-meeting is also a great time to discuss honestly with the mediator those issues or factors that aren’t likely to be included in a mediation position statement, including but not limited to:
Occasionally, as a result of a pre-meeting call, it becomes apparent that a joint call would be helpful. (If there is some disagreement as to what has been produced or should be produced during the mediation, for example.) These days, it isn’t surprising to find that such a joint conversation may be the first time the lawyers have spoken to each other in the litigation.
Sometimes, it may be helpful to have a follow-up pre-meeting with the lawyer and client.
This is particularly enlightening when there is some disconnect between the lawyer and the client on the goals of the mediation, settlement valuation, or if there is a reticence to engage in the process. A pre-meeting can save a lot of time at the actual negotiation session, but it is no substitute for an opening or introductory statement by the mediator whether to both sides together (preferable) or individually.