Attorney's Tips For Successful Mediation


1. Is the Case Ready for Mediation?

  • Is any additional discovery necessary that could significantly affect the value of the case?
  • Have you fully investigated all the material facts, and is the theory of your case supported by credible evidence?
  • Have you educated the other party regarding the case, and provided everything necessary in order for him or her to evaluate liability and damages?
  • Will you undermine the trust needed for meaningful negotiations if you "spring" new information on your opponent one day before or during the mediation conference?
  • Are you saving some dynamite piece of evidence for trial?  If so, why mediate?
  • Should you review the ADR Suitability Assessmentchecklist to help evaluate whether the particular dispute is suitable for resolution through ADR, and to be reminded of the relevant factors that tend to promote or obstruct successful use of ADR?

2. Are You, the Attorney, Ready To Mediate?

  • Have you recently reviewed the file and thought about what you hope to accomplish at the mediation?
  • What is your game plan or negotiation strategy for the mediation?
  • What are your best and worst alternatives to trial?
  • What sort of creative settlements are possible?
  • Would your client benefit from having a structured settlement, accident reconstruction, economist or other expert attend the mediation conference?
  • Are you knowledgeable on taxation issues and the advantages and disadvantages of structured settlements, if applicable in the case?
  • What will you say in your opening statement
  • Are you familiar with mediation procedures?

3. Is Your Client Ready to Mediate?

  • Have you met with your client to explain the mediation process in detail?  Did you provide to him or her A Client's Guide to Mediation?
  • Have you gone through a thorough risk analysis with your clients, educated them about the strengths and weaknesses of the case, and explained your evaluation?
  • How much in agreement are you and the client about your evaluation?
  • Have you shared with your client your thoughts on the range of expected offers or demands from the other side?
  • How realistic are your expectations and those of the client?
  • Have you explained to your client his role at the mediation as well as appropriate attire for the mediation?
  • Have you arranged for the appropriate persons and all decision makers to be present for the mediation, and have they reserved plenty of time for the conference? 

4. Your Position Statement.
 

Help the Mediator be prepared to help you.  Send him or her a position statement or summary of the case, commensurate with the complexity of the case (and send your client a copy).  Depending on the case your statement can include:

  • Brief statement of facts
  • Statement of the issues
  • Summary of parties' position
  • Damage summaries
  • Key pleadings
  • The present posture of the case
  • Description of any sensitive issues that may influence negotiations
  • Key documents, expert reports, photos, diagrams
  • Deposition excerpts
  • Prior settlement negotiations
  • Suggested creative solutions 

5. Preparation For the Mediation

  • Identify and list your strengths and weaknesses, and those of the other side.
  • Outline costs to date, and probable costs to continue litigation to trial.
  • Outline your provable damages.
  • If a PI case, determine plaintiff's obligation to reimburse subrogated medical insurers.
  • Outline information you have and don't have about your case, and about the other side's case.
  • Know your facts and know the law involved in the case.
  • Discuss and analyze settlement options with your client before the mediation.
  • Be prepared to "negotiate".

6. Opening Statements by the Lawyers

  • If you haven't thought about this before mediation day, be careful.  Most of the time "shooting from the hip" sets things back.
  • Remind yourself this is not a trial.  What works in trial does not necessarily work at a mediation.  Remember the goal is to settle.
  • Be nice and be respectful.  Hardball, recalcitrant tactics are counterproductive.  Be friendly to the opposing counsel, but hard on their case.  Don't be afraid to advocate your position strongly in front of the other side, but don't let it become a personal attack.
  • Putting on a "show" for your client is not necessary.
  • A realistic, analytical, non-accusatory approach works. The opposite does not.
  • Apologies, show of empathy, and acknowledgment of weaknesses are beneficial where appropriate.
  • Show preparation.  The more the other side respects your grasp of the facts and the law involved in the dispute, the more influence you will have in getting their position to align with yours. 
  • While delivering your statement look at the other lawyer and his client as well as the mediator.
  • Listen respectfully and advise your client to do likewise when others are speaking.
  • Explain how you go about evaluating cases in general, and your evaluation of this case in particular.
  • Explain how your client's settlement position is a function of how you see the range of outcomes at trial.
  • If appropriate, ask questions of the other side to confirm or increase your understanding of the parties' positions (but first check with the mediator and opposing counsel to confirm that this is acceptable).
  • Try to paraphrase, in a nutshell, what position(s) you heard the other side state in their opening statements.  In any event, before you leave the joint session, show the other side that you understand their position, even though you may certainly not agree with it.
  • It is recommended that your client participate in the opening statement, ie, discuss how the injury has affected his/her life, ability to earn a living, etc. 

7. The Mediation Process

  • Allow the mediator to establish rapport with your client/party representative.
  • Trust the mediator unless he does something that warrants your lack of trust.  If that occurs it is probably time to end the mediation.
  • Keep an open mind and be patient, and remind your client to do the same.
  • Let your clients participate, but help them stay focused, and not to ramble or be too talkative.  Do not necessarily discourage some "venting", especially during private caucuses.  This often facilitates the need for appropriate "closure" of your client's ordeal leading to the lawsuit.
  • Be prepared to openly and honestly discuss the strengths and weaknesses of your case.  Make concessions where justified; it will enhance the credibility of your position.
  • Let the mediator know, directly or indirectly, that you want reinforcement made to your client about some weaknesses and risks in your case.
  • Refine your game plan and negotiation strategy as the mediation progresses.
  • Help identify obstacles to settlement and hidden client needs for the mediator if they are not already discernible.
  • Clearly communicate to the mediator all aspects of your offers, and delineated what the mediator is to hold in confidence from the other side.
  • Listen to the mediator and allow your client the same opportunity.
  • Do not alienate the mediator.  Neutral or not, they are human and his or her credibility with your opponent can be utilized to your advantage.
  • Be flexible.  If you feel it would be helpful for the two parties to speak alone, or you want to talk alone with the other attorney, or the mediator, suggest it.
  • While the mediator is in charge of the process, do not hesitate in a private caucus to suggest procedural or strategic modifications which you feel will enhance the chances of successful negotiations.
  • Be creative. There are often creative solutions to resolve a dispute that involve consideration other than money, e.g. a free cruise, a future discount, continued employment, etc. Also, if progress stalls, consider adjournment and a subsequent mediation.
  • Reduce any settlement agreement to writing, sign it before leaving (at least in the form of memorandum of agreement), and if appropriate, have the parties sign it also.
  • Remember that some cases need to be tried.

8. Negotiating Techniques

  • Do not formulate a "bottom line" position; rather, think in ranges of expected outcomes.  You may learn something at the mediation that affects your "bottom line" evaluation, so don't go in entrenched.  Be prepared to be flexible and open-minded.  Do not dig yourself in a hole (e.g. "we will never accept/pay X dollars for this case").  Always leave yourself an opening.
  • Understand and deal with the four basic elements of negotiation: people, interests, options, and criteria.
  • Separate the people from the problem.  Don't let personalities interfere with reaching a fair settlement.  Blaming is usually counterproductive.  Help your opponent save face.
  • Aggressive posturing or sarcasm have no place in a mediation and are not in your client's best interests.  Be a part of the solution, not part of the problem.
  • Disarm your adversary by always being polite and professional.
  • Be sensitive to body language, tone or inflection, and all other psychological factors that make face-to-face negotiations different; and be sensitive to fatigue factors for all participants, including the mediator.
  • Involve the other side in the process of reaching a shared conclusion.
  • Focus on interests, not on positions.  Negotiate on principles and decide issues on their merits, rather than through a haggling process focused on stated positions and posturing.
  • Be open to the other side's point of view.  Avoid the temptation to overstate your case's strengths or the weaknesses of your opponent's case.  Recognize good faith disagreements on factual an legal issues.
  • Invent options for mutual gains.  Analyze and deal with the obstacles to inventing options.
  • Offer answers and solutions, not more problems.
  • Develop and use objective criteria.
  • Don't be a victim of dirty tricks – its easier to defend principle than an illegitimate tactic.
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