Top 10 Tips for a Successful Mediation

201811.06
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10 TIPS TO PREPARE FOR MEDIATION

A clear majority of civil cases end up in mediation before trial as a result of statute, court rule or by agreement of the parties.  Most mediations occur in one day or less.  Given that many cases are factually or legally complex and inspire intense emotions of the parties, arriving at mediation without either a negotiating plan or thought of compromise is likely to result in failure. Here are 10 tips designed to improve your chance of achieving a mediated settlement.

  1. Have A Negotiation Plan.  Especially in a complex case, a pre-mediation negotiating plan is essential.  This is fundamental.  Arrival at mediation without a plan ensures that you and your client will spend the day reacting defensively to proposals submitted by your opponent.

2. Identify Your Intended Areas of Compromise.  A key part of every negotiating plan requires identification of the scope of acceptable compromise.

3. Anticipate Your Opponent’s Negotiating Objective.  Ask prior to mediation what kind of outcome is your opponent seeking.  What are the expected areas of compromise in your opponent’s position? Where is your opponent unlikely to compromise?

4. Timing of Mediation.  Do circumstances warrant an early mediation attempt?  Why?  For example, can early mediation preserve a business, employment or personal relationship between the parties?  If the amount of money in a dispute is modest, aren’t all parties best served by early mediation?  Is avoidance of negative publicity an incentive to mediate early?

5. Understand Fully the Alternative to Mediated Settlement.  What happens if there is no settlement? If trial is the alternative, what is the forum, would the case be a jury or bench trial, what is the projected cost and when is trial likely to occur?  What is the worst trial outcome?  Ask the same questions if arbitration is the case’s future absent settlement.

6. Lack of Outcome Control and Other Trial and Arbitration Negatives.  In addition to considerable expense and delay, litigants may attempt to influence but certainly cannot control trial or arbitration decisions.  Trial also takes place in a public forum.  There is no guarantee that a trial record will be sealed. Although arbitration is usually a confidential process, confidentiality is not certain.  In addition, the vast majority of commercial and other civil arbitrations are binding.  There are only very limited bases for appeal.

7. Risk Assessment.  Pre-mediation it is essential for attorneys to discuss with their clients the risks inherent in their own position.  Avoiding this necessary step will not benefit the attorney or the client.  It will also unnecessarily complicate the mediation process.  If a client has not heard a single negative aspect of their case until mediation, they are unlikely to trust either the mediator or their attorney if the attorney suddenly changes course and agrees with the mediator’s view of the case.

8. Attendance at Mediation.  For mediation to work effectively, parties with settlement authority must attend.  Often key players are reluctant to attend mediation, especially if significant travel is involved.  Some court rules may require the specific attendance of certain parties. However, most do not.  It may be necessary to ask the court (or arbitrator) to order the attendance of a particular individual.

9. Pre-Mediation Conference with Mediator.  Experience has shown that a pre-mediation conference with the mediator is always useful.  This can be ex parte.  Clients should be encouraged to participate, if they wish.

10. Settlement Agreement Template.  A well-prepared attorney always brings a settlement agreement template to the mediation.  This can be circulated among opposing counsel prior to mediation, if appropriate.  Among other things such a process preempts eleventh hour objections to such often controversial settlement provisions as confidentiality and non-disparagement.  Arriving at mediation with proposed written settlement terms also sends a symbolic message.

Following the above 10 best practice tips will enhance the probability of a successful mediation. However, if the mediation does not result in settlement, it is important to ask the mediator to follow up with the parties.  Determined mediator post mediation follow up is usually effective in achieving settlement.

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