The time is 9:10 am. The room is filled with professionals of all ages, sitting around tables with notepads open, pens poised, and coffees steaming. With a few taps on the microphone, all attention swivels to the front of the room where nine people sit around a u-shaped table. As they take a last look at their notes, the mediator begins to speak and they all settle in for the morning’s show…
...we learned just how much work goes into preparing for mediation – real or staged.
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No, these are not the stage directions for a new play in town, but rather how I spent a morning last week. A month ago, an email went out around the firm that one of the partners was putting on a mediation advocacy seminar and would anyone like to volunteer to participate. The articling students jumped at the opportunity to partake, and, along with a few of the associates, we learned just how much work goes into preparing for mediation – real or staged.
At our first prep meeting for the mock mediation, it was stressed that preparation was the key to doing a good job. We needed to learn our roles, be they as clients or counsel, know what our goals and motivations are, and prepare for how we would react when information we didn’t necessarily want to come out came out.
I myself was playing a particularly unhinged client, lying to herself, her lawyer, and her employer. My character had gone to Jamaica with her boyfriend while on Short Term Disability, and had lied about her troubled history with drugs, alcohol, and the law on her job application. She wanted to keep her job, but more than that, she wanted to feel vindicated in the decisions she had made.
As I learned more about my character and how I wanted to present her I realized that the kind of investigation I was doing was the same I would need to do if I was representing her instead of simply playing her at mediation. In order to be a good advocate, it would not be enough to just replicate the pleadings and take information at face value into mediation.
And so as the mediation unfolded and we each played our parts – intentionally flawed to show the pitfalls of styles perfectly acceptable in the truly adversarial courtroom setting – we all felt the power of preparation taking over. When information we were unaware of was presented to us, we were able to respond convincingly. When the mediator asked questions that went three or four levels deep about our motivations, we were able to give plausible explanations. While the rave reviews at the end of the seminar were heartening (it was suggested we take the show on the road!), what we really took away was that there simply is no substitute to being well prepared.
Kati A.
