July 09, 2018

Preparing as an attorney for mediation

As an attorney, how should you prepare for and participate in a successful mediation:

Explain prior to your client the following:
  • The mediator is only interested in helping the parties arrive at an agreement; she is not a friend of the opposing client or you.
  • The mediator and attorneys will try very hard to arrive at an agreement
  • The agreement reached at mediation is not going to be your best day in court, and should not be your worst day in court
  • Do I, your attorney, have all the information you think the opposing side will bring to the mediator?
  • Is there anything about your case that you have not told me?
  • The mediation process is not easy, will take time, but if agreement is reached, you will be relieved. 
  • Encourage your client that although the mediator is out of the room, the mediator is indeed working on the case.
  • Give the mediator a confidential mediation statement
  • This mediation statement should describe your client’s case and what you think the opponent will argue (often the opponent’s attorney does not give a mediation statement to the mediator)
  • In the confidential mediation statement, state why the case should be resolved the way you see it
  • The mediator is usually a very experienced attorney, but they don’t know the specifics of your case until you tell them in the mediation statement
  • Give the confidential mediation statement to the mediator at least 48 hours prior to the mediation.  Mediators have lives too and it may take them time to review the confidential mediation statement
  • If there are numbers concerned in the case, give the mediator an excel sheet so he can analyze the case using your numbers.
  • When you arrive at the mediator’s office meet with the mediator and opposing counsel so that you and the opposing counsel can tell the mediator the issues you have agreed to and during that time see if you can work out any other issues
  • During the process, when a stalemate occurs, which it will,  ask the mediator to allow counsel to meet to try and work out the stalemate before the mediator terminates the mediation.
Opposing Counsel
  • Work with them to try to stipulate to as many of the issues as you can prior to the mediation
  • Be kind – they are under the same pressure you are to try and find settlement
  • Have all your documents with you in case opposing counsel does not have the documents and needs to review the document you gave them 4 months ago.
  • Be open to ideas proposed by the opposing counsel to the mediator 



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