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Mediation Advocacy – Countdown to a Successful Mediation

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Mediation Advocacy – Countdown to a Successful Mediation

Source: Law.com
Date: January 28, 2015

Barbara A. Reeves, Esq., CEDS

Resolution Centers


Lawyers and mediators sometimes fail to appreciate that a mediation requires as much advance planning and consideration of strategy as a trial. Too often, lawyers (and some mediators) pick up the file a day or two in advance (at best) and wing it, relying on their advocacy skills and smarts to negotiate their way through the mediation day. This approach does not serve the needs of everyone involved. By using the following mediation countdown, everyone will come to the table prepared. 1. Develop a Timeline Using the tools below, if you are counsel representing a party, decide when you want the mediation, and then plot your timeline just as if it were a trial date. List all the tasks you need to do: prepare case analysis; educate clients on the mediation process and their role; and identify client positions and those of the other side. Be sure to allow for significant trial events and dates or any post-session follow-up. 2. Selection of the Mediator Do not restrict yourself to the mediator your colleagues have always used – ask them whether their recommended mediators got the matter settled to their satisfaction. Ask whether they and their client enjoyed, or at least appreciated, the process with that mediator. Consider agreeing to a mediator recommended by the other side – presumably that is someone to whom they will listen. 3. Talk with the Mediator in Advance Pre-mediation communication with the mediator ensures that there are no last-minute surprises in terms of which parties will attend and the format or process to be used. 4. Identify the Right Participants Select a knowledgeable client representative who has the authority to settle the matter, even if it takes some creativity. Then ask the other parties who their representatives will be. They may this, although they should. If one party feels that the other’s representative is not knowledgeable or does not have authority, they may not listen to anything coming from that side of the table. If there are multiple parties on one side of the case, they should definitely confer about their representatives. 5. Risk Assessment Steps Objectively evaluate the best result, worst result, and other potential scenarios and spend time making sure that all the decision-makers and client representatives understand the evaluations and agree with them. If there is a difference of opinion amongst client stake- holders, this must to be addressed so that mediation counsel and the mediation representative have clear direction. 6. Timing You will learn a lot about your case and your opposing party’s case in a well-managed mediation. This information may lead you to want more discovery or to reevaluate your position. Therefore, do not wait until the close of discovery or the eve of trial to mediate – if it does not settle, you may need time to adjust your strategy. Similarly, although mediating before discovery commences can save a lot of attorney fees that would otherwise be spent on discovery, mediating without sufficient information will cause one or both parties to be afraid of committing to a settlement. Discuss with the other party and with the mediator information that you need in order to evaluate 1.800.352.JAMS | www.jamsadr.com This article was originally published by LAW.COM and is reprinted with their permission. Mediation advocacy – countdown to a SucceSSful Mediation By Barbara A. Reeves Neal, Esq. Mediation Advocacy | Page 2 your settlement position, and see if you can reach an agreement for an informal exchange of that information in advance of mediation position. 7. Multi-party and Missing Party Issues In a complex case with numerous issues and parties, consider mediating among all parties for a global settle- ment, or taking it one bite at a time on a per issue basis or among a limited number of parties. Are there any hidden participants who should be at the table, but are not? The increasing use of litigation funding often means that there are investors who are fronting litiga- tion expenses in return for a share of the result. If they are not represented at the mediation, you run the risk that they will not understand the dynamics of the case. 8. Know Your Opening Move Decide on your opening move before you get to the mediation, and understand what message you intend to convey with that position. Put it in writing and discuss it with your client so that no one is fumbling when it comes time to make your initial offer or demand. 9. Plan Your Closing Alternatives Identify settlement objectives in writing, with an optimistic “stretch” objective, as well as a realistic what-you-would–settle-for objective. 10. Bring a Settlement Draft with You to the Mediation Drafting a settlement agreement after a long tiring day of mediation leads to grumpy lawyers and mistakes. Bring your draft settlement agreement with you to the mediation and revise it as the day progresses to reflect different provisions under discussion. 11. Follow-Up It’s not over until everyone gives up. If the case does not settle at the initial mediation session, follow up with the mediator by phone and even schedule another ses- sion. The dynamics of the case or the interests of the parties may change over time. Barbara Reeves Neal is an arbitrator, mediator and spe- cial master working with JAMS, specializing in insur- ance coverage and based in Los Angeles. She can be reached at breevesneal@jamsadr.com.

Lawyers and mediators sometimes fail to appreciate that

a mediation requires as much advance planning and

consideration of strategy as a trial. Too often, lawyers

(and some mediators) pick up the file a day or two in

advance (at best) and wing it, relying on their advocacy

skills and smarts to negotiate their way through the

mediation day. This approach does not serve the needs

of everyone involved. By using the following mediation

countdown, everyone will come to the table prepared.

1. Develop a Timeline

Using the tools below, if you are counsel representing

a party, decide when you want the mediation, and

then plot your timeline just as if it were a trial date. List

all the tasks you need to do: prepare case analysis;

educate clients on the mediation process and their

role; and identify client positions and those of the other

side. Be sure to allow for significant trial events and

dates or any post-session follow-up.

2. Selection of the Mediator

Do not restrict yourself to the mediator your colleagues

have always used – ask them whether their

recommended mediators got the matter settled to their

satisfaction. Ask whether they and their client enjoyed,

or at least appreciated, the process with that mediator.

Consider agreeing to a mediator recommended by the

other side – presumably that is someone to whom they

will listen.

3. Talk with the Mediator in Advance

Pre-mediation communication with the mediator

ensures that there are no last-minute surprises in terms

of which parties will attend and the format or process

to be used.

4. Identify the Right Participants

Select a knowledgeable client representative who

has the authority to settle the matter, even if it takes

some creativity. Then ask the other parties who their

representatives will be. They may this, although

they should. If one party feels that the other's

representative is not knowledgeable or does not have

authority, they may not listen to anything coming from

that side of the table. If there are multiple parties on

one side of the case, they should definitely confer

about their representatives.

5. Risk Assessment Steps

Objectively evaluate the best result, worst result, and

other potential scenarios and spend time making sure

that all the decision-makers and client representatives

understand the evaluations and agree with them. If

there is a difference of opinion amongst client stakeholders,

this must to be addressed so that mediation

counsel and the mediation representative have clear

direction.

6. Timing

You will learn a lot about your case and your opposing

party's case in a well-managed mediation. This

information may lead you to want more discovery or to

reevaluate your position. Therefore, do not wait until

the close of discovery or the eve of trial to mediate

– if it does not settle, you may need time to adjust

your strategy. Similarly, although mediating before

discovery commences can save a lot of attorney

fees that would otherwise be spent on discovery,

mediating without sufficient information will cause

one or both parties to be afraid of committing to a

settlement. Discuss with the other party and with the

mediator information that you need in order to evaluate

1.800.352.JAMS

| www.jamsadr.com

This article was originally published by LAW.COM

and is reprinted with their permission.

Mediation Advocacy –

Countdown to a Successful Mediation

By Barbara A. Reeves Neal, Esq.

Mediation Advocacy

| Page 2

your settlement position, and see if you can reach an

agreement for an informal exchange of that information

in advance of mediation position.

7. Multi-party and Missing Party Issues

In a complex case with numerous issues and parties,

consider mediating among all parties for a global settlement,

or taking it one bite at a time on a per issue

basis or among a limited number of parties. Are there

any hidden participants who should be at the table, but

are not? The increasing use of litigation funding often

means that there are investors who are fronting litigation

expenses in return for a share of the result. If they

are not represented at the mediation, you run the risk

that they will not understand the dynamics of the case.

8. Know Your Opening Move

Decide on your opening move before you get to the

mediation, and understand what message you intend

to convey with that position. Put it in writing and

discuss it with your client so that no one is fumbling

when it comes time to make your initial offer or

demand.

9. Plan Your Closing Alternatives

Identify settlement objectives in writing, with an

optimistic "stretch" objective, as well as a realistic

what-you-would–settle-for objective.

10. Bring a Settlement Draft with You to the Mediation

Drafting a settlement agreement after a long tiring day

of mediation leads to grumpy lawyers and mistakes.

Bring your draft settlement agreement with you to the

mediation and revise it as the day progresses to reflect

different provisions under discussion.

11. Follow-Up

It's not over until everyone gives up. If the case does

not settle at the initial mediation session, follow up with

the mediator by phone and even schedule another session.

The dynamics of the case or the interests of the

parties may change over time.

Barbara Reeves Neal

is an arbitrator, mediator and special

master working with JAMS, specializing in insurance

coverage and based in Los Angeles. She can be

reached at breevesneal@jamsadr.com.