Whatever the major stage of litigation that is upcoming, be that trial, discovery, or mediation, there is one common element: preparation. Preparing yourself and your client for mediation is as important as preparing for trial. Better preparation leads to better outcomes.
Tips for Counsel
- Know both the strengths and weaknesses of your position.
- If making an opening statement, craft your message in a way that won’t get the other party’s back up.
- In mediation, respectful advocacy is far more effective than forceful advocacy.
- Think about the critical ingredients of a settlement agreement before arriving at the mediation.
- Tally up the costs to date and estimate the costs to complete a trial.
- Try not to make opening offers that are unrealistically high (or low).
- Ensure that the ultimate decision maker is at the mediation.
- Ensure that your client understands “settlement momentum”.
Tips for Parties
- Understand that there is a “string to be let out”: opening offers are never final offers.
- Some people say that there is no such thing as a “final” offer. There is some truth to that!
- It is essential that the representative of the party attending the mediation has the authority to settle.
- Being respectful in a mediation is paramount. Angering your opponent hinders settlement.
- Victory and vindication are not the goals.
- Dignity, certainty, satisfaction and closure are the goals.
- Remember that it takes a lot of princiPAL to uphold your princiPLEs.
- Never lose sight of your BATNA (Best Alternative To a Negotiated Agreement).