PREPARING FOR MEDIATION
I. Attorney Preparation for Mediation:
A. Know Your Case:
üConsider mediation only after you have sufficient information to evaluate your client’s case for settlement.
üUnderstand your client’s needs (including emotional needs), interests and goals.
üKnow the factual and legal issues in dispute.
üUnderstand the particular factual and legal issues critical to a successful outcome.
üUnderstand all the elements of your cause of action.
üKnow and be prepared to define your damages/counterclaims or other desired relief.
üUnderstand the elements of any counterclaims or defenses.
üResearch comparable bench and jury verdicts.
üBe aware of insurance, Medicare/Medicaid liens.
B. Identify the Barriers to Settlements:
üLack of information.
üClient or opposing party poor communication or negotiation skills.
üGood-faith disagreement about the facts or the law.
üEmotions sufficient to disrupt the negotiation process.
üWrong people at the table.
C. Pre-Mediation Planning:
üConsider what information you want to provide to the mediator.
üConsider directly contacting the mediator in advance of the mediation.
üConsider what information you want to disclose to the opposing side in advance of the mediation or during the mediation session.
D. Additional Pre-Mediation Planning:
In the increasingly sophisticated world of commercial mediation, the failure of a mediator to schedule a meeting with legal counsel and/or the parties by telephone or in person in advance of the face-to-face mediation is more the exception than the rule
This meeting provides the opportunity for the mediator to customize the mediation process to the benefit of both parties.
II. Client preparation for Mediation
A. Prepare Client for Mediation:
üMeet at a reasonable time prior to the mediation to educate your client and prepare as a team.
üReconfirm that the client understands there is no requirement to reach an agreement at the mediation.
üExplain the strategic difference between the attorney’s role at mediation and at trial.
üExplain the reasonable range of monetary settlement options.
üRe-identify the needs, interests and goals of your client.
üDiscuss settlement options that will satisfy some or all of your client’s goals.
üConduct a risk analysis—analyze strengths and weaknesses of both sides.
üPrepare your strongest arguments.
üAnticipate the other party’s strongest arguments.
B. Explain the Mechanics of Mediation:
üMediator’s introductory remarks.
üOpening statements by plaintiff and the respondent, if any.
üUse of caucus (private meetings) conducted with the mediator.
üExplain the mediator’s role as a facilitator of communication, not a judge.
C. Client’s Involvement in Mediation:
üThe importance of the client’s positive first impression.
üMediator’s direct and indirect communication with the client.
üThe potential for attorney discussions with the mediator outside of the private meetings (caucus).
üDiscuss a reasonable initial demand or response to demand.
üExplain the need to attend mediation with an open mind and the willingness to consider a creative resolution of the dispute.
üDiscuss the time and expense of proceeding from mediation to trial.
üDiscuss the range of possible trial outcomes.
D. Explain the Close of Mediation:
üUnderstand that not every mediation results in a settlement.
üMediator’s limited communication with the Court.
üWritten documentation of any settlement.
ü“Next steps” if no settlement at mediation.