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JAMS ADR Insights


Make the Most of Your Mediation: Effective Negotiations

By Hon. Lynn Duryee (Ret.)

Wouldn't it be great if at your next mediation your client left satisfied, you felt valued and the case settled at its best number?  Here are five tools lawyers can use to set up such an outcome: 

1.  Bring everything you need to settle completely.  Before the mediation, think about what you will need to settle the case in its entirety.  Perhaps it is a document, such as a settlement agreement, release of lien, escrow instructions, quitclaim deed or dismissal with prejudice.  Maybe it’s your client’s checkbook or certified funds.  Perhaps it is something intangible, such as tax advice or a reduction of a medical lien.  Whatever your case might need to settle it once and for all, have it with you at the mediation.  If closing documents require notarization, arrange to have a notary at the ready.  The best time to hammer down loose nails is when parties are face-to-face and focused on resolution.  Knowing in advance what you need to settle reduces the possibility of overlooking some detail and gives you a template for working with your opponent.  Plus, it really enhances the giddy factor when, for example, the contractor walks out with a check in his hand and the homeowner has a notarized release of mechanic’s lien in hers.

2.  Give the case your full attention.  Sure, you can spend the day playing on your cell phone and billing other files, but if you give your client your full attention, you will increase your client’s satisfaction as well as the likelihood of settlement.  Why?  Because engagement is magic.  If you think about the most exhilarating moments in your life—whether you were trying a case to a jury, delivering a baby or watching Game 7 the World Series—you were giving 100 percent of your effort to that important moment.  Do the same for your client during his mediation.  Attend to his needs.  Be patient in explaining the ups and downs of the day.  Let him grouse for the hundredth (and hopefully last) time.  You will learn more because you’re listening deeply, improve your thinking because of your single focus and enjoy yourself because you’re on fire.  Doesn't sound better than another round of boring solitaire?

3.  Say it with pictures.  As lawyers, we believe in words.  We love them!  Can’t get enough of them!  So we often forget that seeing is believing.  How can you best illustrate your case?  Day-in-the-life videos are awesome, but not every case merits an outlay so time-consuming and expensive.  It could be something as simple as enlarged color photographs (not the usual black-and-white photocopies better suited to a Rorschach than a visual aid).  What about a brief PowerPoint with pictures of the defects?  Or a video showing the cows’ trespass on to your client’s property?  Or a mockup of the defective product?  Visual aids are a great tool for the joint session because they’re efficient, interesting and persuasive.  So save your breath and say it with pictures.

To read on to section 4. Create Ground Rules, please read the full article from by clicking here.

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