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Checklist for Successful Mediation
By: Theodore A. Deckert, Esq.

Copyright © 2007, Theodore A. Deckert, all rights reserved


INTRODUCTION

Most mediators and attorneys would agree the goal of mediation is usually to settle the dispute and mediation is sometimes referred to as “Let’s Make a Deal Day”. Experienced litigators and mediators, however, know that mediation also can be successful even if no settlement is reached at the mediation conference. Often a case will settle after the mediation conference but before the parties expend significantly more time and money litigating the dispute. The key is to do everything that can be done before and during mediation to get the parties and the decision makers to the point where they would rather settle than spend more time and money and risk going to trial.

While it is important to remember mediation is about “making a deal”, not “winning”, this does not mean that attorneys should not strive to obtain the best settlement they can for their clients. What follows is a “Checklist for Successful Mediation” which I have prepared based on tactics and techniques I have observed and learned from many different sources and my personal experience as an attorney and a mediator. The checklist is not all inclusive, but it is intended to serve as a quick review of points which should be considered before and during mediation in order to maximize the likelihood that mediation will result in a prompt settlement. Many lawyers have told me they use it as a preparation checklist for attorneys and staff, and I invite you to clip it out and use it likewise.

CHECKLIST FOR SUCCESSFUL MEDIATION

Prepared by Theodore A. Deckert, Esq., Certified Circuit Civil, County and Family Mediator, Special Magistrate and Arbitrator. Copyright © 2007, all rights reserved.

BEFORE MEDIATION DAY

  1. Schedule appropriately:
    1. Time of day - Consider what best for you, your client and all participants, physically & mentally, and availability of participants in different time zones.
    2. Allow sufficient time - Complex issues, intense emotions usually take time to work out. The more adverse parties, the longer it will likely take.
    3. Consider and arrange availability of non-present “key people”(i.e. financial consultants/subrogation representatives/supervisors) for additional information or authority especially at “crunch times”.

  2. Prepare yourself:
    1. Know your case - the facts and the law - good & bad.
    2. Make sure you have updated records, reports and other information the other side will want to see to justify your position. Ask yourself what would you want to see if you were on the other side.
    3. Know your fees, costs, lien amounts, unpaid bills, etc.
    4. Know your client’s wants and needs.
    5. Have a plan. Know your opening position.
    6. Know your BATNA (Best Alternative to a Negotiated Settlement).
    7. Prepare persuasive “Visual Aids” - Blow-ups, Charts, Videos, Power Point. Remember no evidentiary rules at mediation!
    8. Dress right - impressions count - “Its Show Time.”

  3. Prepare your client:
    1. Explain the process and purpose of mediation.
    2. Make sure your client is aware of strengths and weaknesses of both sides of case. Address unreasonable expectations ahead of time if possible.
    3. Dress right - impressions count - “Its Show Time.”

  4. Prepare the Mediator:
    1. Submit a mediation summary - issues, facts, & current positions of parties.
    2. Advise of any “special factors,” confidentially if appropriate.

AT MEDIATION

  1. Bring important parts of your file to mediation. Be prepared to show the other side what the key evidence or testimony actually is, not just tell them about it.

  2. Bring proposed settlement documents - preferably ready to sign or on computer disk or zipdrive for easy editing and printing.

  3. Bring blank check(s) if your client is being asked to pay anything.

  4. Give a trial quality opening statement. Show them who and what they will face at trial, but avoid grandstanding. Emphasize your credibility. Focus on strong points of your case, but avoid hard-line, bridge-burning statements or positions. Invite the other side to explain the basis for their evaluation of the case. Consider holding off stating your settlement position until you have heard the other side’s position.

  5. Be Nice. Be strong and persuasive but also polite and respectful. Educate - don’t litigate. Avoid talking directly at the opposing party, except to express empathy or agreement with them or to apologize. Goal is to get the other side to settle, not convince them they are wrong. Let the mediator argue your case to the other side.

  6. Use “Visual Aids.” They work! Remember no evidentiary rules at mediation!

  7. Listen carefully & be open-minded. Try to see issues from the other side’s perspective. Try to identify their wants and needs. Remember that if not settled, the dispute will be decided by someone other than the parties.

  8. Think “win-win.” Remember the people on the other side of the table may actually be looking for you to help them find a way to settle.

  9. TALK WITH YOUR MEDIATOR!!!
    1. Let the mediator know, confidentially if appropriate, everything you think he or she needs to know and understand about the case and the players in order to help you settle your case.
    2. Resist the urge to hold back information from the mediator or the other side. If you really want to settle, mediation is often the best opportunity you will have to show the opposing party how strong your case is.
    3. Be candid, especially with your mediator. Emphasize strengths, but acknowledge weaknesses in your case. Your mediator can help you objectively evaluate your strengths, weaknesses and risks.
    4. Remind the mediator of your strong points during the mediation.
    5. Don’t be reluctant to tell the mediator what you want to achieve or ask the mediator for help structuring your settlement proposal or for other ideas.

  10. BE PATIENT!!! Mediation is a process, not an event. The more complex the issues or more intense the emotions, the longer it takes to get through them to reach the point of addressing how to settle.

  11. BE PREPARED TO COMPROMISE!!! Even if only a little. Remember mediation is about settlement, not winning. You can’t always get what you want, but often you can get what you need.

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