Ten Tips for Getting Great Results from Mediation

Author:Mr Gilbert Román
Profession:Rothgerber Johnson & Lyons LLP
 
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Introduction

Parties are increasingly turning to voluntary mediation of their disputes as an alternative to litigation. The reason why mediation has become so popular is its high success rate. Many successful mediators report anywhere from an 80% to 95% success rate. A successful mediation produces a result that both sides can live with and that brings an end to the adverse relationship between the parties.

Here are some strategies to help you get the best results from mediation:

Attitude. Mediation is not litigation. It is a structured form of negotiation. Therefore, the objective is to get both sides listening and talking, not alienating one another. This requires a different frame of mind than litigation. It is astonishing how often this fundamental difference between mediation and litigation is overlooked.

Preparation. The single biggest mistake that attorneys make in the mediation process is not spending adequate time preparing. In this context, preparing means putting together a settlement notebook. Parties who go into a mediation having spent considerable time and resources in preparing a mediation package are far more likely to achieve success than parties who, at the last minute, send a copy of the pleadings for the mediator's consideration

Written Materials. Part of adequate preparation means providing the mediator with written materials that address the strengths and weaknesses of the case. It often makes sense to send out two different mediation statements: one that is delivered to both the mediator and the opposing party, which obviously outlines the case from your perspective and highlights its strengths, and a second, addressed only to the mediator, that recognizes vulnerabilities and weaknesses in the case. A good mediation package should include a recitation of the facts with important documents, including attached affidavits; a detailed discussion of damages; and a strong legal argument section, with key cases attached.

Openness. Counsel for the parties in a mediation often choose to keep important evidence a big secret. This is a by-product of the litigation atmosphere and its "hide-the-ball" concept. Secrecy is generally counterproductive in mediations.

Opening Remarks. In most mediation proceedings, the mediator will start by setting forth the ground rules and expectations. However, after that, some mediators ask the parties themselves to discuss the case from their point of view and even how the case has made them feel. Other mediators...

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