Richard Morley Barron Mediation

EFFECTIVE PREPARATION FOR MEDIATION

No serious attorney goes to trial without extensive thought, research, and analysis.  Similarly, no competent counsel ought to appear for a mediation (aka facilitation) without having undertaken an equally rigorous analysis of the entire case.  Since most cases are settled in mediation and it behooves counsel to be prepared to obtain the best possible result for his or her client.  Able counsel resist the temptation to “wing it” on the theory that they have mediated many similar cases.  Each case is unique and involves different parties and different circumstances no matter how similar it might appear to prior cases.  Counsel can only be fully prepared if they carefully and honestly analyze each of the players in the mediation “game”.

Counsel should begin their pre-mediation analysis by thinking about their client.  Counsel should ask the following questions about the client:

How well do they understand the facts and law of their case?

How well do they understand the position of the opponent?

How well can they communicate their situation to the other side?

How is the client likely to react to the other participants?

How well does the client understand the nature of the mediation process?

How willing is the client to compromise their formal position?

How confident is the client in your professional judgment?

How well does the client understand the amount of additional time and money involved in proceeding to trial?

How well does the client understand the risk of their being unhappy with the results if the case does not settle and proceeds to trial?

Counsel should next analyze himself or herself by asking:

How well do I understand my client’s fundamental needs, goals, and interests in the case?

How well do I understand my client’s toleration for risk and ability to continue to finance litigation?

To what extent am I fully prepared on both the facts and the law?

To what extent do I fully understand the opponent’s position?

To what extent am I aware of the strengths and weakness of both sides?

Is the opposing side ready, willing, and able to try the case?

Have I calculated a reasonable settlement range for the case?

Have I determined a realistic starting position?

Have I determined how the client & I will interact both in joint session and in caucus?

Is there any evidence I do not wish to disclose to the other side?

How might the mediator help my client advance their position?

Counsel should next analyze the other side by asking:

Is opposing counsel fundamentally co-operative or combative?

Does opposing counsel have a firm grasp of the facts and the law?

Is opposing counsel likely to reciprocate our information sharing?

Does opposing counsel understand my client’s situation?

Does opposing counsel have good “client control”?

Does opposing counsel have a positive relationship with the mediator?

How risk adverse is the other party?

Are there issues on which both sides might have common interests?

Counsel should finally attempt to analyze the mediator by asking:

Is this mediator a good fit for this case?

What materials should I furnish the mediator to aid them in understanding my client’s situation?

What issues or personal dynamics should I bring to the attention of the mediator?

What areas or issues, if any, do I not want to discuss in joint session?

How does the mediator propose to structure the mediation session?

Are there any time constraints?

Is there any possibility of a non-monetary component in a settlement?

What can the mediator do to help my client satisfy their needs?

Finally counsel should analyze what will likely happen at the mediation session.  These questions are generally helpful:

Do I have a “game plan” for this mediation?

Have I coordinated it with my client?

Is there any additional needed formal discovery, which will prevent settlement at this time?

Are there any persons, not parties to the action, whose presence is likely to be necessary to any comprehensive settlement?

Have I furnished the mediator in advance with copies of all key statutes, rules and cases?

Have I formulated a realistic rational for the damages I will be urging?

Have I assembled and organized my documents and evidence?

Have I given my client clear directions as to the time and location of the mediation?

Have I assured my client that all negotiation is conditional and that I will try the case if they cannot arrive at a settlement they consider to be fair?

Have you reminded your client that negotiation is difficult and frequently protracted and thus they should not schedule any other commitment the day of the mediation and be prepared to patiently continue to negotiate until it is clear to all that further progress is not possible?

Have you reflected on why the case has not settled so far?

If counsel will ask these, and similar, questions before a mediation session, the result of the mediation will be more favorable and the risk of impasse will be dramatically decreased.  Preparation is the mother of success!

Richard Morley Barron