Location: Law Group | Mediation Tips

Mediation  Tips...     

There is a point in the litigation process when attorneys have learned the basic facts, and clients have begun to realize that litigation is an expensive process. Normally this is the time when 90% of the information is known, but only 10% of the cost of going to trial has been expended. At this crucial point, one’s client may be most receptive to settlement, and mediation before an impartial third party may be the key to that settlement.

However, some common mistakes are made by counsel which reduce their chances of achieving a favorable resolution through mediation:

LACK OF PREPARATION

No one would consider going into trial unprepared. Yet, a surprising number of attorneys and their clients approach mediation unprepared. Given the high percentage of cases settled in mediation, the importance of preparation should go without saying.

FAILING TO ADVISE THE CLIENT REGARDING THE PROCESS
AND THEIR ROLL IN SAME

The attorney should thoroughly explain the mediation process to the client, including its informality, confidential nature, direct participation of the parties, and the opportunity for the parties to test their perceptions and positions against those of an impartial third mediator. The latter is just as important in a mediation as it is at trial. Thus, one’s client should be prepared in both appearance and presentation.

UNDULY LIMITING THE CLIENT'S INVOLVEMENT

Although there may be good reason to limit a client's involvement in mediation, attorneys who attempt to do so entirely are often sending unintended messages about their client’s credibility as a witness. Effective use of clients who tell their story in a sincere and straightforward manner is a very valuable tool.

FAILING TO HONESTLY WEIGH THE ALTERNATIVES
OF SETTLEMENT VERSUS LITIGATION

Parties must realistically evaluate their likelihood of success, the cost of going

forward the emotional toll of litigation, the ability to collect on a judgment, and control over the ultimate resolution, instead of rejecting offers "out of hand" with little consideration. This realistic evaluation should be considered before mediation is commenced.

ENGAGING IN PERSONAL ATTACKS

In mediation, the mediator is NOT the ultimate decision-maker. Rather the parties assume that role. Thus, alienating the adversary lacks common sense. Parties should treat the opposing side as they would treat the judge and jury. "Respect" is the key to a successful mediation.

FAILING TO ADDRESS THE ADVERSARY'S CONCERNS

An effective way to build trust and credibility with an opposing side is to carefully listen to, acknowledge and address the opposition’s concerns. Parties who fail to pay attention to, or readily interrupt, the statements of their opposition are alienating their adversary as much as those who engage in personal attacks. Acknowledging the other side’s position does not mean that it has to be accepted, only that it has to be addressed. If the opposition believes their positions have been given due consideration then they will be more willing to listen to those facts and arguments which challenge such positions. This tactic can go a long way in favorably resolving your case in mediation, as many parties derive satisfaction from simply having their story actually "heard" by their adversary.

DISCUSSING "DOLLARS " TOO SOON

It is a huge error to discuss one’s "bottom line" and numbers at the outset. Please resist the temptation. Again, building trust and credibility with the opposing side should be your first step, especially when you are demanding a large amount of money or offering little. It is best to leave money matters to the private sessions with the mediator where strategies can also be discussed.

MAKING OUTRAGEOUS DEMANDS / OFFERS
WHICH ARE UNSUPPORTED BY THE FACTS AND EVIDENCE

This, unfortunately, is one of the biggest mistakes plaintiffs make during mediation. This tactic is usually met with contempt and an equally outrageous counter-offer. Just as an expert’s opinion is only as good as its underlying support, a settlement demand / offer is only as credible as the basis upon which it is drawn.

NOTE: avoid round numbers wherever possible. Especially when the demand is made in large, round numbers, this typically conveys a willingness to move DOWN in large, round numbers. If the special damages add up to an odd number, then the offer should be based on such figure.

DEMANDING TOTAL CAPITULATION

Arguing in "absolutes" and refusing to concede ANY fact, issue or settlement term often is a party’s own worst enemy. Settlements are sometimes lost because the party with leverage attempts to dictate ALL the terms. It is extremely important to allow the other party to "save face" at the end to avoid a last minute, irrational backlash. This can make the difference between success and failure in mediation.

FAILING TO UNDERSTAND THE MEDIATOR ’ S ROLE

Mediators can serve as powerful tools in the resolution process by evaluating the strengths and weaknesses of each side’s case from an informed, neutral standpoint. Oftentimes, parties are too close to a case emotionally or financially to conduct a fair evaluation. "Reality testing" is a key function of the mediator. Many times, the greatest impediment to a successful resolution is a difficult party with unrealistic expectations. An effective mediator is more adept at conveying the realities of litigation and at obtaining necessary concessions to achieve resolution than an adversary, or even one’s own attorney.

    Arbitration

    Mediation

    Mediation Tips

    Expert Witness

    Consultant

    Melodie Swanson

   Free Information Center

   Latest Legal News

   Swanson Realty Group