In some ways, preparing to simply sue a neighbor over a dispute can be more straightforward than preparing for a mediation with that person. In litigation, your lawyer will know the “rules” governing the process – from depositions through trial – and will not only explain them to you step-by-step, but handle many of the tasks before you are called in to play a role.
But a mediation is a strange combination of formal and informal. Although it’s a legalistic process, it ultimately involves a few people sitting around a table, having a discussion. What can you do to prepare for the mediation ahead of time?
First, take a deep breath. Chances are, you will be working with an experienced mediator. This person is likely to be either a volunteer (such as a retired lawyer working pro bono through a bar association or a social worker) or a compensated mediator whom you and your neighbor are paying for services. Most likely, they've done this many times before. They’re accustomed to the awkwardness and tension in the room when two people are seeking help to solve their dispute. The good news is that a trained mediator knows how to structure the conversation in a way that makes sense. Trust the process and structure that the mediator outlines.
While a volunteer mediator might not have the opportunity to speak with you and your neighbor individually before the mediation session, a compensated mediator normally will have had some contact with the parties beforehand. This person will speak with both sides individually to get a sense of the nature of the dispute and the relationship between the neighbors. Do you hate each other? Are you close friends trying to overcome a specific disagreement? Do the issues between you extend to interpersonal ones, well beyond one neighbor, say, being noisy or engaging in disruptive behavior?
Be honest with the mediator. Remember, the mediator is not a judge or an arbitrator. He or she has no power to pass judgment on you. It is to your advantage if the mediator knows your true feelings and motivations so as to forge a compromise that works best for both sides.
If you’re speaking privately with the mediator before the mediation, you can also feel free to request that certain information not be shared with the other side. This is common. Indeed, mediator codes of ethics prohibit a mediator from sharing certain information given privately by one party, when asked not to do so.
Once everyone has gathered around the table, the mediator will typically take the reins, describing the process and the goal.
Then, in most mediations, both sides will be asked to give their own perspective on the situation. This means that you will be asked to describe your relationship with your neighbor and the specific dispute at hand. You typically address your comments to the mediator, making eye contact while you speak. However, your neighbor will of course be sitting there as well, and it is natural for you to visually reference him. Your neighbor will similarly make a statement to the mediator while you sit and listen.
Not surprisingly, each side tends to give a very different interpretation of the same events. Be prepared to feel strong disagreement with what your neighbor will say, but don’t interrupt! Your neighbor should extend you the same courtesy, and the mediator should enforce these basic rules of discourse.
Knowing that you will be called upon to give your account of the conflict, you should consider making some notes beforehand so that you can be as articulate as possible. This need not be a lengthy, detailed, polemical speech. Rather, consider that you are explaining the conflict to an acquaintance who has never met you or your neighbor. What key facts would that person need to understand?
You might bring a small notepad with an outline of what you intend to say, just to ensure that you hit all of the most essential points. In the moment, it can be easy to be nervous or emotional and leave out important bits of information - or, on the opposite extreme, include levels of detail that are distracting or unhelpful to the mediator. Avoid the instinct to write out a speech and read it. Mediation should be a conversation, not a court argument. You will be more convincing in this setting if you speak naturally, giving your experience in your own words as if explaining it to an uncle.
It is important to go into the mediation session knowing what outcome or outcomes you would like to see. Many mediators will present that question to each party directly – “What would you like to see happen when we all walk out of this room?” Be prepared to answer that question.
Be as concrete and specific as possible. Remember, the mediator will probably draft some sort of “settlement agreement” at the end of a successful session. If the terms of that agreement are vague, the agreement will be easy to violate. A vague outcome you might think you want is: “My neighbor will not let his dog misbehave.” You might know what that means, but it would be difficult to enforce. Something more specific will be easier for you, your neighbor, and even his dog to understand, such as: “My neighbor will not allow his dog to 1) walk into my yard or 2) use my bushes as a bathroom.”
It is equally important that you come into the mediation with potential compromises in mind. It takes two to tango, as the saying goes, and it is unlikely that your neighbor will compromise his or her position without seeing that you’re also willing to have some “skin in the game” by compromising a bit.
Do not, however, go into the mediation with a mere list of demands, such as, "My neighbor will give away his dog and pay me $500.00 in damages." This is likely to only anger your neighbor. Rather, go into the mediation with a list of things that you would like to see change, as well as some steps that you are willing to make to see that happen. Be creative.
In addition to preparing yourself in the logical ways described above, by thinking about what you want and making notes about points to make, you should also prepare yourself emotionally. Mediations can be emotional. People get angry.
Your goal should be to come off as reasonable – caring, but not overly emotive. Mediations are ultimately about compromise, which requires some level of mutual understanding, logic, and reasonableness. Although mediators are not supposed to “take sides,” mediators surely prefer the party who speaks clearly, knows what he or she wants, and refrains from interrupting and yelling. Basic civility and a calm voice can go a long way to convincing both the mediator and your neighbor that your position has merit.