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Ten Suggestions For The Advocate Mediating The Complex Case


By George Fitzsimmons

Mediation of the major case has become popular in recent years because of a simple reason: Mediation results in settlements. In my experience as a mediator, more than 85% of mediated cases settle as a result of the mediation. Clients frequently are more satisfied with the settlement than they would otherwise be because they have taken a key role in the settlement process. A mediated settlement avoids litigation expense, firm personnel expense, and the uncertainty of the jury verdict to both sides in the lawsuit.

In preparing for a mediation, the attorneys should consider the following:


Select of the Mediator

The attorney should choose a mediator carefully by considering the mediator’s litigation background, credibility with all parties involved, experience as a mediator and the ability of the mediator to settle cases. The attorney should not reject a mediator merely because the other side suggested that mediator as that person has instant credibility with them.

Attendance at Mediation

The attorney should be absolutely certain that all persons with decision-making authority attend the meeting in person. It is not enough that the decision maker is “available by telephone.”

Preparation of the Parties

All parties should be fully prepared by their attorney as to the format of the mediation. The attorney should discuss the client�s role in the mediation and the strategy to be followed during the mediation. In this way, the client will feel that he is part of the mediation process and not merely a spectator. A client who is able to explain his position and the reasons therefore can be very effective in the negotiation process.

Preparation of the Attorney

The preparation for the mediation is much different than preparing for trial. The attorney should be prepared to not only discuss the facts of the case and the applicable law, but also to creatively approach the negotiation. The creative approach should consider the needs of both sides at the mediation if there is to be a settlement. For instance, the defense may want a confidentiality agreement, the payment of a portion of the settlement over time, and sharing of court and mediation costs.

Preparation of the Mediation Statement

The attorney should thoroughly present the case and the law in the mediation statement. Frequently, the attorney chooses to provide the statement only to the mediator. The attorney should consider whether it would be better to also supply a copy of the mediation statement to the opposing side as the goal of the mediation is to convince the opponent and the mediator may waste valuable time in explaining the position to the defense. The attorney should also decline to make any personal attack on the opponent during the opening statement as this will anger the opponent and harden negotiating positions.

Negotiation Strategy

The plaintiff’s attorney should consider an opening settlement demand that is in the fair range of settlement discussion. Excessive opening demands place a chilling effect on negotiations and may push the defense away from the mediation process. The settlement demand should be accompanied by reasons and analysis to support its validity. By the same token, the defense should consider an opening offer that responds to this reasonable demand settlement.

Be Flexible

The attorney should condition his client to keep an open mind as to settlement as new information frequently is disclosed during the course of the mediation. If either side has a “drop-dead” figure in mind before negotiation begins, it is often difficult to persuade the client of the reasonableness of a settlement offer based on newly disclosed information.

Mediation Psychology

The attorney should prepare the client for the emotional and psychological aspects of the mediation. The attorney should realize that emotional issues such as the death of a spouse or loved one, loss of employment, competence of the defendant, and similar issues frequently need to be vented on both sides before serious settlement discussions can occur.

Preparation for the Caucus

The attorney should prepare himself and the client for private sessions with the mediator. The attorney should be prepared to strategize with the mediator as to the client’s financial and other needs.

Closing the Deal

The attorney should discuss additional needs beyond money with the mediator before the settlement is concluded. The attorney should prepare a settlement agreement before the mediation so that all important details are negotiated. These would include issues such as confidentiality of the settlement, scope of release, non-disparagement, tax issues, structured payments, payment of court costs and mediation costs and other matters. The attorney should insist that all aspects of the settlement be finalized in writing at the conclusion of the mediation.

The attorney should realize that the mediation process is not about winning but a process of working with the experienced mediator to reach a settlement that results in satisfied clients whose needs have been met through the mediation process.

George Fitzsimmons is a mediator at United States Arbitration and Mediation Midwest, Inc. and can be reached at 1--844-4237


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