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Mastering Mediation Preparation with Amy Mariani Ep #373

Mastering mediation preparation

What should mediation preparation look like? How do you select the best mediator for your case? How do you make the most of a mandatory negotiation should you ever find yourself in that position? Amy Mariani—who practiced law for 20 years before transitioning into mediation—answers these questions and so much more in this episode of Negotiations Ninja.

Outline of This Episode

  • [1:43] Get to know Amy Mariani
  • [3:10] How to prepare for a mediation
  • [6:57] Power, punishment, and principle
  • [10:09] How to select the right mediator
  • [13:16] How a mediator remains unbiased
  • [15:27] Is mediation in the US legally binding?
  • [16:38] How people can misuse mediation
  • [17:25] Making the most of the mediation process
  • [20:57] The differences between litigators and mediators
  • [23:39] When a mediator shouldn’t be involved

Step #1: Determine if mediation is possible

If the primary motivation for mediation is power, punishment, or principle, mediation is going to be challenging (if not impossible). The parties need to understand the cost of standing on principle or punishing the other side.

I advised a client who had received what they thought were defective parts from a supplier. They were going to negotiate to remedy the situation, so I prepared a strategy for them. However, when it was presented to the executive, he basically said, “Screw these guys; we’re going straight to litigation.” It was going to cost them tens of millions of dollars, and he didn’t care. That’s when I realized that it wasn’t about the money.

The executive understood what the cost would be and didn’t care. He wanted to punish the other side and stand on principle. If they choose to put that interest above all others, mediation will not work.

Amy was dealing with an allegedly breached asset purchase agreement. The amount in controversy was fairly small. The amount they could walk away with post-litigation was far less. They preferred to spend the money on lawyers than pay the other side anymore (because they were left taken advantage of, to begin with).

Step #2: Exchange information

Many corporate contracts include clauses that dictate how things work when an agreement can’t be reached, and a mediator must be obtained. How do you prepare for the process when you’re forced into mediation?

Amy encourages the exchange of as much information as the parties are comfortable with sharing. The more information that people have prior to litigation and mediation enables Amy to do her job better.

The information helps her build a bridge between the parties on a common understanding. They’ve agreed on what the facts are and can figure out how to move forward based on common knowledge. If either party refuses to share information, it’s like building a bridge on quicksand.

Step #3: Determine stumbling blocks

It’s important to know the essential terms to negotiate on common ground. So Amy will talk to both parties and their lawyers to figure out what the stumbling blocks are. 99% of the time, it isn’t about money. A company might be worried about an employee leaving with confidential client information and competing against them. They might want to build a non-compete or non-solicitation clause built into the contract.

Is mediation in the US legally binding?

Mediation is voluntary, so people can choose whether or not to participate. It is only legally binding if a settlement agreement is reached. If they want something legally binding without a total agreement, they’ll need to look at the arbitration process.

Amy’s role is to explain the benefits of participating. If an agreement is reached, Amy prepares a memorandum of understanding. She’ll help the parties hammer out language and execute the settlement agreement. Her role is to walk willing parties through the process.

Learn more about mediation preparation and how to navigate the full process by listening to the whole conversation!

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