Joseph P McMahon Jr., LLC 
Mediator, Arbitrator, Facilitator & Settlement Counsel
303-333-1960  Fax 303-322-8044
mail@jpmcmahon.com     www.jpmcmahon.com

Mediation & settlement negotiations often are difficult conversations, that require both emotional as well as more business normal preparation.  The experts in this field say that inadequate preparation is the reason that negotiations or mediations go poorly. As a checklist, consider the following in your preparation:

	Interests. What are your (your client’s) real interests in this negotiation/mediation? What are your real goals? What do you want to resolve this lawsuit and change the relationship? Why is this important to you? How do you measure success? What are your success criteria? Do we know which issues are most important to us? Least important? Have we reconsidered our goals recently? Are they current or out of date?
	The other parties. What are the other parties’ interests? How do they see this negotiation? What is important to them? Why? How do they see us? How can we change their misperceptions about us? Do they stereotype us? How can we avoid that? What are our shared interests with them?
	Relationships. What is our present relationship with the other parties? Why? What are the present conflicts between us? What caused them? What future conflicts between us are likely? How will these conflicts be resolved? Is more litigation likely? Are we in danger of a cycle of repeat litigation? How would we prefer to see our relationships change? How could it change?
	Information. What facts do we know? How certain are we of our facts? What information are we missing? How can we get the information we need? What assumptions are we making? Are these good assumptions? What future events could change this situation?
	Decision-making. What is our trial risk? Are we over-confident in our chances at trial? If we lose at trial, what happens? If we win at trial, what happens? What are the challenges to predicting trial outcome?  Are we reacting to the other party or making thoughtful decisions? Are we pre-occupied with past events or positions? Are we merely justifying past decisions, positions or statements?
	Settlement errors.  Which settlement errors is our party likely to commit?  How can we avoid or mitigate the effect?
	What do I need to know from or about the other party? What could they tell me to clear up ambiguity? What would I like to know from them? How can I ask that to get the clearest response? Who are their negotiators? What drives them? What could cause them to leave the negotiating table? How can I encourage them to keep negotiating?
	Likely negotiation topics. What issues will we need to discuss in this negotiation/mediation? How important are these issues to me? To them?
	Analysis of issues needed for resolution.  In a comprehensive resolution, define a list of all topics that will need to be addressed?  What are the reasonable options for resolution of each topic?
	Value, BATNA, aspirations - our party.  What "value" do I need from the negotiations?  What is my BATNA ("best alternative to a negotiated agreement")?  What is a reasonable value to which I can aspire?  At what point will I decide to leave the negotiations because of low prospective value?
	Value, BATNA, aspirations - the other party.  What "value" do they need from the negotiations?  What is my BATNA ("best alternative to a negotiated agreement")?  What is a reasonable value to which they can aspire?  At what point will they decide to leave the negotiations because of low prospective value?
	The internal mediation.  Every treaty is really three treaties (one across the table and one on each side of the table).  We need all three to be successful, so each party must ensure that it is mediating internally its own disputes.
	What are some options that could resolve these issues and conflicts? Can we create some new options for resolution? How? What can I offer to the other party to encourage settlement? What do I value more highly than they? What do they value more highly than I? What tradeoffs are in my best interests? Are there some creative approaches to solving this dispute?
	Secondary effects. How does the resolution of this dispute affect other matters and issues? Positive or negative?
	Negotiating roles. If on a team, have we assigned roles? Who will handle what issue? Who is the best spokesperson on an issue? As between lawyers and clients, who will be responsible for what parts of the mediation?