Mediation Tips for Attorneys and Parties who are preparing for mediation

March 24, 2014

In a recent mediation, while in private caucus, a good plaintiff lawyer was trying to answer all questions for his client. I finally convinced him to let his client talk, so I could get to know him. The client's recollection of events was a bit scattered so the lawyer filled in some blanks. Later the lawyer shared with me privately that he had not prepared his client for examination at mediation, and was concerned that what he said could be used against him. I reminded him of the confidentiality agreement cloaking any "errors" his client might make in his private room; further, his client would be better served to be allowed to be "human" and not "prepared". I was better able to present his case to the other side, and we were able to get his case settled. But this caused me to reflect on what preparation is helpful and what is not helpful for mediation:


Lawyers: (1) set up a separate meeting with the client in advance of mediation to get a better handle on the case, (the good and bad), to educate your client for mediation, manage expectations in light of strengths and weaknesses plus damages; (2) unless there will be a joint session, there is no reason to "prepare" a client to "testify". Rather, it should be explained that the mediator will talk with them, and to be themselves, not try to sound "right" all the time (Most folks are "right" and "wrong" in different parts of the case). (3) in advance, make sure that all the right people are present at mediation; The plaintiff should be there unless absolutely impossible. Defense do construe their absence as a lack of concern about the case. But if plaintiff cannot be present, at least get approval from opposing counsel, and ensure that plaintiff is available in real time for dialogue & to sign any settlement agreement. For defense, the decision-makers, and/or carrier representatives with authority, should be present unless impossible, and if so, then they need to be available at all times, via cell phone, regardless of distance and time zone changes; and alert your opposing counsel. (4) Briefs: it is helpful in most cases to have a "brief"- but, make sure that it adds value- huffing, puffing & rhetoric for pages about how bad the other side is does not provide value. Providing a chronology of events, discussing the wrongful acts that led to this dispute, enumerating all damages and prior settlement talks, is very helpful. If the law is complex or perhaps not the area of specialty of the mediator, then by all means include the salient law affecting the heart of the case. (5) I regularly schedule pre-mediation calls, as do some others. Make yourself available for such a call, and if your mediator does not set one up, do reach out to the mediator to give him or her an overview of nuances, obstacles, language barriers, cultural issues, etc. in the case, or about the clients, or anything else that will help the mediator to prepare for the mediation. (6) Look at comparable verdicts for similar cases (and not just the ones that favor your position). Try to look at a representative sampling, of course also pull those that you believe will help in your case.


Clients: Most plaintiffs are new to litigation and mediation. Often corporate clients are savvy about the mediation process, but many are not, or may not be about this type of case. (e.g. a company involved in construction is usually not a stranger to workers comp or personal injury claims, but may not be familiar with an employment case). (1) Be sure to ask questions of your lawyer about what to expect and what is needed to prepare for mediation; (2) Pull documents that may be needed to help at the mediation. (3) Prepare chronologies or any other tool to help guide counsel or the mediator. (4) Learn about your mediator (e.g. check websites or other information); (5) While it is good to set 'goals" for mediation, try not to draw finite "lines in the sand", e.g. come to mediation with at least a "somewhat" open mind. Everyone usually learns something about their case that they did not know, often something which could change your perspective of the case or open eyes to risk factors. (6) Think of what you want/need to achieve from the mediation process; (7) understand that everyone starts with a number, and will generally not end at that number. Mediation is a "process" with fluidity, and an end picture that may not perfectly match the beginning picture. (8) Visualize the case being over and how your life will be better if it is.


There are many other big and small things that can or should be done to prepare for mediation, but I will only add: to trust and be optimistic about the process.

 

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