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In her blog below, Phyllis Pollack extolls the need for preparation. I have the following suggestions for what that means. First, start early! Do so by identifying jury instructions applicable to your case. These are explicit guides to what you need to prove and where mediators may focus. Then identify local jury verdicts which demonstrate how juries have responded to similar cases.
Identify the sources of the proof you need. Analyze not just how each will be presented, but what objections you may encounter. A “smoking gun” document will do you no good if you have no way of introducing it into evidence, or if a motion ad limine will prevent you from doing so.
Focus on neutral witnesses and the potential credibility they would have to a mediator or to the other side. Write your mediation statements sparingly, focusing on your strengths and the other side’s vulnerabilities. Above all, tell your client’s story. The law is interesting, but stories are more so. Address your obvious weaknesses thoughtfully, but avoid exaggeration.
Look for opportunities to seek agreement on relatively minor matters. Outside career counseling or agreed-upon responses to pre-employment inquiries are not only inherently valuable, agreement on them creates investment in the process and the momentum which regularly leads to a complete settlement.
Prepare your client. Take time to explain what mediation is, how the process works and how to respond to the mediator’s questions. Have a plan for your offers or demands. Each mediation has a focus and flow of its own, so prepare your client for the unexpected. Plan for you and your client to work late; doing so does not guarantee a settlement, but it makes it more likely.
~ Dave Smullin
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