How can you increase the odds that your upcoming mediation will be successful? Once the mediator has been chosen and the mediation date is set, preparation is the answer. Many of the frustrations with mediation (it takes too long, too little progress was made during the initial session, a party had inadequate authority, one party needs to study new information) can be the result of a lack of good pre-mediation preparation. To make the most of the opportunity for settlement that mediation provides, prepare yourself, your client and the mediator in advance.
• Know your case, including all material facts and governing statutes, rules and precedents.
• Don’t focus solely on liability issues, but also be prepared to discuss the facts and law as they relate to damages and injunctive relief.
• Understand the economics, including the cost of going to trial, tax consequences of any settlement payment, present value calculations, interest calculations, etc.
• Anticipate questions about the strengths and weaknesses of your case and the other side’s case.
• Consider disclosing any information you have that you believes strengthens your case even if you were hoping to “surprise” the other side with it at trial.
• Prepare a draft settlement agreement and bring it to the mediation or send it to the other side and the mediator, in advance, in electronic form, so it can be revised at the mediation, and on paper, so it can easily be reviewed.
Prepare your client
• Explain the process to your client even if you believe your client is familiar with litigation and the mediation process. Discuss who will attend the mediation session and all the details, such as the time and place of the mediation. Point out that the mediator will be spending time with the other side. Let them know that progress is often slow at the beginning and that mediation takes time. Make sure the client understands that the mediator is neutral, which means the mediator will ask the client tough questions and point out weaknesses in their case. Assure the client that the mediator will be doing the same thing with the other side.
• Clients are sometimes surprised when the mediator wants to speak with counsel only or when the mediator suggests that the parties meet or speak without their counsel. Discuss these possibilities with your client in advance of the mediation session and explain why mediators sometimes make these suggestions.
• Make sure your client understands the strengths and weaknesses of the case, including damages, and the anticipated time and cost associated with taking the case to trial. You don’t want her to be surprised by anything you say during mediation.
• Make certain the client representative(s) attending the mediation has full and final authority to settle the case and will be able to reach any other persons who need to be consulted before a final agreement is reached. Discuss in advance all material terms of a potential settlement, including confidentiality.
• Explore settlement options with your client and explain that mediation provides the opportunity for a creative resolution of the dispute that may differ significantly from the relief available in court. Ask your client to think about creative options for settlement. What could the client offer the other side or accept from the other side other than money to resolve the case?
Prepare the mediator
• Remember, the mediator is entirely dependent on counsel to provide the information he needs to mediate the case. A prepared mediator can save time and move the discussions forward more quickly because he does not have to spend as much time at the beginning becoming familiar with the case.
• Provide the mediator with a mediation statement in advance of the mediation session. Ask yourself, what does the mediator need to know to understand the dispute and get it resolved? Provide the mediator with that information.
Certainly, include information on claims and defenses, recoverable damages and other forms of relief, and prior settlement discussions.
• Talk to the mediator in advance of the mediation session to answer any questions she has and to provide additional information. Give the mediator questions to ask the other side. Tell the mediator about any obstacles to a successful mediation, whether they are on your side of the table or the other.
• Continue to communicate with the mediator during the in-person mediation session. Let the mediator know of brewing issues, such as a client who is having second thoughts about concessions already made or frustration with the process. Tell the mediator if you see other possible avenues for settlement, which have not been explored or were previously rejected.
Good preparation does not guarantee that a settlement will be reached during mediation, nor does a failure to prepare doom mediation efforts; however, good preparation does ensure that you and your client make the most of the opportunity.
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