Mediation requires counsel to view the dispute differently than when preparing for trial. Counsel who are preparing for and engaged in mediation use a different skill set than counsel who are preparing or engaged in trial. It is important to apply the skill set which is appropriate for a given stage of the litigation. Counsel should consider the words on the sign at the rural railroad-crossing: Stop, look and listen.
First, stop thinking like a litigator and start thinking like a problem solver. A good place to start is with the mediation brief. Most lawyers understand that mediation briefs are designed to educate the mediator. Indeed, that is one goal. No matter how familiar the mediator is with subject matter, the mediator needs to understand what is so unique about your dispute that the attorneys had to resort to mediation. Let the mediator know.
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