Tips for Successful Mediations

How do you know if your case is ready for mediation?

• The case has "been around for awhile," and no settlement talks have taken place.
• Substantial discovery is to be commenced, and could be avoided by resolution now.
• Numerous parties are involved, and agreement on liability and damages is unlikely or difficult.
• The case really should settle, even though the stated positions are quite far apart.
• The parties are reluctant to state a "true" evaluation of what the case is worth, because of negotiation strategies.

Mediate your case early. You will save time and a lot of money. Most cases can be successfully mediated without a lot of discovery. If you feel you really need discovery, it is wise to secure a mediation date now even if it is several months away. This will help keep your case "on the front burner".

Most cases are emotionally charged. As a result, clients will be unrealistic in their expectations of settlement. It can be very important, therefore, to let your client vent at the mediation and "have their day in Court".

Submit materials to the mediator about your case. They will be read, and it will help speed up the process.

Alert the mediator to any special circumstances about the case. Make sure to let the mediator know what aspects of any pre-mediation materials are to be kept confidential.

Do not hamstring the mediator. If it is not absolutely important to keep a fact confidential, let the mediator use it to help settle your case.

Always, always obtain your client’s permission (preferably in writing) for any disclosures made to the mediator so you will not run afoul of RPC 1.6(a) (revealing client confidences and secrets).

Maintain professionalism in all encounters with your opposition attorneys and parties. Use the private sessions to express any sarcasm or hostility about your opponent’s case.

If your client has a hidden motive or agenda, do your best to find this out prior to the mediation and then let the mediator know about it (with your client’s permission).

Most of all, remain flexible. Creative solutions can often be found if all sides remain committed to the process.