Preparation – and how to be more Federer!

Roger Federer once said that ‘half of any victory in a tennis match is in place before you step on to the court’. The same is true for mediation, where preparation is key to success. Andrew Hildebrand specialises in settling business disputes – here’s his handy 8-point guide for clients.

1. Take yourself out of the equation

Mediation isn’t like litigation. You’ve been fighting but now’s the time to do things differently. Move off the stage and watch yourself from the balcony – what have you been doing and how have you been behaving? From a different perspective you may see that you are also one of the main obstacles.

2. Make resolution your priority

No matter how unprincipled or venal the other side seem, how hurt or betrayed you feel, stay focused on what you want to achieve. Make a list and prioritise your ‘must haves’, ‘would likes’ and ‘no no’s’.

3. Put yourself in their shoes

Consider what you think ‘their’ list is likely to be. Is there something symbolic you could give them – maybe even an apology – that won’t cost you anything but will mean a lot to them? Think through what you might be prepared to accommodate to get them to give you what you want.

4. Review the risks

If you don’t settle, what are your chances of winning in court? And what will it cost you through to the end of trial, worse case? Calculate your position, net of costs, win or lose – and factor in the risks. Don’t stop at the financials – review other risks of continuing to litigate such as reputational damage, adverse publicity, stress and what else you could be doing with that lost time. Then put yourself in their shoes again and run the same exercise for them, so you have a clear idea of what everyone has to lose if the mediation isn’t successful.

5. Get tactical

Mediation is about ‘ending the argument’. How have you successfully ended other arguments? What about with work colleagues or at home with your children?  Better still, ask your partner.

6. Do a trial run

You could do a trial run with a mediator. It will help you get a better sense of what to expect on the day and the factors likely to influence key decisions. Back when I was a client preparing for a mediation, we would hire a mediator to prepare us. We found it invaluable. So much so that we sometimes also had them join our team on the day. That seemed novel then but having a mediation advocate is now fairly mainstream.

7. Be prepared to listen

Mediations invariably work unless one of the protagonists isn’t listening. Don’t be that person.

8. Keep your eyes on the prize

Expect attacks and setbacks but don’t let emotion get the better of you. Keep focused on where you want to get to, and believe that you will. As Nelson Mandela said: ‘It always seems impossible until it's done.’