There is no better way to settle your case than through mediation. The purpose of this article is to make suggestions to maximize your opportunities for success. As a full-time mediator, by virtue of sheer volume, you are involved in the resolution of more cases in one month than most attorneys are in their entire career. Because of that experience, you begin to observe distinct patterns that serve as a guide to what counsel can do to make the most of this process. Many lawyers and their clients do not fully understand the process, which leads to numerous mistakes that often doom their best efforts (and those of the mediator) to bring the case to a successful resolution. This article will focus on the process itself, what can be done to improve your chances for success, and what mistakes may be avoided.
Preparing for the Mediation
The success or failure of the alternative dispute resolution process is all too often predetermined. Whatever the nature of the case, counsel’s preparation will often govern whether the process is successful or not. The parties should carefully review the mediation agreement and any written guidelines presented by the mediator. The strategy should be to position the case for settlement in advance. One of the first questions I ask the parties is: “What gave rise to the mediation?” Surprisingly, most parties often give answers like: “I thought it would be a good idea,” or “The other side wanted it.” Often times, the latter assertion is then denied. This belies the fact that often insufficient preparation and thought is given to the process in advance. The preparation for mediation should be similar to the preparation that one would engage in for trial. Know why you are there, understand where you want to finish, and make sure your clients are well informed.
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