Publications - Successful Mediation

Parties have found that compromise of a dispute avoids the risk and cost of litigation. We have come to learn that it is easier to work out a compromise with the assistance of a qualified neutral. There are ways to increase the probability of success at mediation.

Be Prepared. There is No Short Cut to Success
Draft a brief and include in it all important legal and factual issues and the arguments in your favor. At the same time, draft for yourself and your client an honest assessment of how the litigation may end up should the issues be decided against your side. Self appraisal will assist you in coming to a realistic and fair resolution of the case. Do not forget to include in your assessment any provision under law or contract for attorney fee shifting.

Prior to mediation, consider all factors that may impact settlement including those that are not simply facts and law applicable to the case. Have you considered the financial expense to your client of going forward, the emotional cost of continued adversarial proceedings including trial, any publicity that your client would wish to avoid. If you fail to address these issues, your mediation may fail.

In your preparation, include an assessment of the reasonable value of the case in the event the judge or jury finds in your opponent’s favor on some of the issues. This will give you a realistic range of possibilities so you can balance the risk of going forward against the benefit of settlement.

Get Your Client Ready
It is safe to say that virtually every mediation is attended by at least one client who is a first timer. Counsel can reduce their client’s anxiety by explaining the process and that the mediation is confidential. There should be forewarning of the “horse trading.” Clients may be put off when their personal controversy looks like a mere bidding process.

If you have a likeable, credible, well speaking client, consider allowing the client to tell their own story. This may be the client’s only opportunity to relate his or her version of the events and that might be important to the client. Clients should, however, be coached not to alienate anyone with remarks that are demeaning or contemptuous or in any way offensive to the other side.

Provide the client with your realistic assessment of the case and of the odds of winning and losing. This will, of course, be reinforced by the mediator in closed session. I have found that the client is highly respectful of their own attorney when the advice is ultimately reinforced by the mediator.

Avoid Surprising the Other Side
Make sure the attorney on the other side of your case has been educated about the way that you perceive the case and that you have provided the other attorney with concrete evidence of your position. Additionally, long before the mediation, determine which people on each side of the case need to be present for full resolution to occur and get confirmation from the other side that their authority will be present. Additionally, if a lien must be satisfied, make sure you have information about the lien and any information that will allow you to reduce the lien and, if possible, have the lien claimant present.

Draft Settlement Terms
Prepare a written agreement and bring it to the mediation. Sometimes the case settles late in the day when support staff is not available to help the parties type their written negotiated agreement. Each party should bring, in written form, essential terms to the negotiated settlement agreement.

If confidentiality is important, if repairing an ongoing relationship is important, if obtaining an apology is important, if a condition needs to be met by either side, these should be considered and proposed early. Terms such as these need not be discussed in joint session but the parties should be prepared to discuss them at some point before the final writing of the negotiated agreement.

Hopefully, your mediation will be the most important event in the controversy. You can be successful by being prepared.

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