An article in Executive Legal Adviser, Nov./Dec. 2005 at 22 (by Michael Maslanka and Theresa Gegen) discusses several ideas that sound pragmatic (or controversial) for when you prepare for mediation.
(1) You want the other side to accept and relate to the mediator, so if possible “develop a profile of the type of mediator who’ll bond with the other side, pick three mediators who fit the profile and let the other side make the final decision as to who will be the mediator.”
(2) When you interview prospective lawyers or mediators, ask them: “If I don’t pick you, whom should I pick?”
(3) Estimates your odds. “If we try this case 10 times, how many times will we win? If we lose, what is the range of potential damages, and percentage likelihood of falling within that range?” What are the realistic best-case and worst-case scenarios? (See my post of Oct. 24, 2005 on decision analysis and Bruce Beron and Marc Victor.)
(4) The authors also recommend that the CEO figure out how much money it will take to resolve the matter, but not to tell the lawyers. “I never tell my lawyers the number, because they always spend it.” That homily should offend in-house and outside counsel.