Better to be Confused at Mediation? - MEDIATION MINUTE Nov 2011

MEDIATION MINUTE:

Can confusion be a good thing in Mediation? November, 2011

________________________________

Mike Daisley

Attorney & Certified Mediator,

NCDRC

Confused over all the new

NC laws (e-discovery,

"billed v. paid," bifurcation, experts, damage caps, etc.)?

Good! Here's why...

Some wise theologian once quipped that the greatest enemy of faith is not doubt; it's certainty. The same could be said, I think, about the greatest enemy to good negotiating.

Yes, it's very good to be prepared and thoroughly

Use "uncertainty" to your advantage at mediation.

knowledgeable about the facts of your case and the law that is likely to be applied. But there's a difference in being knowledgeable about your case, and being "dead certain" about what's going to happen. There are a thousand steps between mediation and verdict, and it's impossible to know them all.

In the hundreds of mediations I've done over the last decade, I've seen it more than a few times. One attorney assures me (and his client) in a private caucus, "Hey, when the jury sees this evidence about (fill in the blank), they will NOT be happy with the Defendant!" Months later, the Judge keeps that evidence out. Another attorney tells me, "Look, there's just no liability here! If they don't take our (very small) offer today, we will just file our summary judgment motion." Weeks later, it's denied, and off they go to trial.

The reason I mention all this now is because I can't remember a time in my quarter-century of practicing law when litigants faced more UNcertainty over an outcome. For instance...

Under the new "billed v. paid" statute, what is exactly the "amount necessary to satisfy the bill" when the statute provides no definition for "satisfy" nor does it speak of "when" that should be determined?
The video above talks about the wide open "bifurcation" statute. Who decides when a case is worth the threshold of $150,000?
In smaller cases, there is new legislation regarding the awarding of attorneys fees. How much more exposure does a defendant face now?
And there's a whole host of other "tort reform" changes the Legislature has "blessed" us with...from expert testimony to higher burdens on harned patients to damage caps that may take years to settle out.

A smart litigator will go into mediation armed with all the uncertainties (the "known unknowns" as one Secretary of Defense famously used to say!), and express them in a way to increase the risk facing the opposing party, and offer good reasons why his or her client's position is

Pull a Rumsfeld! -- What are the
"known unknowns" facing the other parties?

the most likely to prevail. These new laws may provide golden opportunities for such persuasive negotiations.

Please don't hesitate to contact my office if you have a particular situation -- whether a mediation or otherwise --that's coming up, especially if you are thinking it is even more "uncertain" than most. You can reply to this email, or follow my law firm on LinkedIn, Facebook, Avvo and YouTube.

Or better yet -- just pick up the phone and dial 704-887-6776. Even if I can't help you directly, I'll always do my best to steer you in the right direction.

All the best,

Michel C. Daisley

Attorney & Certified Mediator, NCDRC

DAISLEYLAW, PLLC

2412 Arty Avenue
Charlotte, North Carolina 28208

MDaisley@DaisleyLaw.com

phone: (704) 887-6776

fax: (704) 887-6790

Feel free to access other newsletters and videos...

Both for mediations and "Legal Trends, Odd & Ends."

This "MEDIATION MINUTE" newsletter is meant to offer just a few quick insights to keep in mind and perhaps consider for mediation advocacy. Some earlier editions have looked at Opening Statements (with videos specifically

Handling Anger at Mediations -- and other places!

for Plaintiffs and Defendants); and through The Power of an Honest Question.there may be a way to help diffuse the anger of a client or opposing counsel. (See video at left.) Again, all of these newsletters and videos are archived at the DaisleyLaw.com articles page.

If you are a true glutton punishment, check out some of my LEGAL TRENDS ODDS & ENDS eNewsletters as well, and some of the videos attached. Again, they can be found under the

DaisleyLawGroup page of YouTube.

And now that I have joined forces with Bill Powers of Powers McCartan, PLLC, the use of videos will become even more prevalent as a way to communicate about various legal issues and common concerns.

You're receiving this email because of your or your company's previous contacts with Charlotte attorney Mike Daisley of the law firm of DaisleyLaw, PLLC. Its purpose is to provide you and your colleagues and friends with helpful information and general legal insights. This email is NOT intended as a solicitation of representation, nor specific advice for any specific legal problems or issues.