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Tips, Techniques and Strategies for Effective Mediation

By Janet Rubin Fields

Mediation is a Confidential Comfortable Place for You and All Parties to Attain Knowledge and Ultimately Make Informed Decisions

I. The Attorney’s Perspective – What You Say You Want to Know

1.  What Goes On In The Other Room

2.  What Mediators Share With Each Other Outside The Attorneys Presence –

(a)  No We Don’t Have Our Own List Serve

(b)  It’s Lonely in The Room

3.  “Tis The Season” –The Best Time to Mediate

II. Professionalism

1.  Trust – From Inception or Earned

Take Away the Cloak of Suspicion – It Begins with All of Us

2.  Lawyers, Opposing Counsel, Insurance Representatives, the Parties

Field Adjusters Exclusive for Mediation

3.  The 5 Year Litigated 4 Session Mediated Resolved Case

III. Welcoming the Process With An Effective Mediator

1.  Have a Positive Attitude and an Open Mind

2.  Mediation Is a Process that Can Ultimately Lead to Resolution

3.  The Alternatives, Thinking Out of the Box, Learning Curves, Evaluation, Re-Evaluation, Gaining Objectivity

4.  Your Definitions of An Effective Mediator: (a) Works hard; (b) Grasps the issues, (c) Energetic, tenacious, (d) Compatible; (e) The opposition listens; (f) The client listens; (g) Their EGO is put aside; (h) Follows up on unresolved cases; (i) Tireless dedication; (j) Accessible: text, email, cell phone;

IV. Preparation – Know Your Case and Bring Ammunition

1.  Pre-Mediation Telephone Conference

b. Readiness, Homework, Settlement Demands

a. Let the Mediator Know Your Needs Privately Pre-Mediation

2.  Risk and Cost Analysis – Venue, Judge, Jury Pool

3.  Case Status: pre-litigation, pre-trial motions, experts, current and future costs

4.  Preparing the Client – Relationship and Confidence Building

a. Significance of the Event for the Client

b. It’s Not All About the Money – Emotional, Other Agendas

c. Client Control – Direct Communication with the Mediator

5.  The Significance of Submitting a Timely Brief

a. Submitting Days in Advance v. The Day

b. Educate/Sway the Mediator – Highlight the significant issues, law with exhibits

d. Provide procedural background and trial date

e. Provide a pre-mediation negotiation history, if any

f. Confidentiality – separate briefs versus sharing information

V. The Mediation Hearing – Empowering Your Mediator

1.  It’s All About Who’s in the Room

2.  Playing Poker with the Regular Crowd or A New Sheriff in Town

3.  Know Your Danger Points and Address Them Confidently

a. Advocate from Confidence Not From Fear

4.  Have the file and crucial evidence including deposition transcripts available

a. It’s All About the Electronics, Show & Tell

1. Expert Witness Reports, Photos, Graphs, Exemplars, Models, Videos, Tape Records, Power Points

2. Witnesses Present – Family, Friends, Experts

5.  Damages – Can You Sell Them to Your Mediator With a Straight Face?

a. Lawsuit Naming Teenage Plaintiffs Controlled by Parents

b. Medical Specials, Loss of Earnings, Life Care Plans, Loss of Earnings, Generals

6.  Cases With An Emotional Component

a. Sexual Abuse, Sexual Harassment, Wrongful Termination, Wrongful Death

VI. The Take Away – How To Gage Success Outside of Resolution

1.  What The Parties Have Learned

a. Meet and Greets Help Assess Value

b. Impeachment: Surveillance, Social media

c. Coverage issues, Additional insurance, Additional discovery needed

2.  Narrowing the Settlement Gap

a. Convincing the offer the top dollar offered and the bottom line demanded

b. The Mediator’s Proposal

3.  Binding Arbitration or Trial High/Low

3.  Compromise Is Not “Weakness”

4.  Knowledge is Empowering for Making an Informed Decision

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Article | Mediation: The Resolution RevolutionArticle | Preparing Your Case for Mediation 2017