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MEDIATIONMINUTE:
Summer Fundamentals: 
"Yeah, yeah, I know I should 
'Prepare for mediation!'... But HOW?" 
(And an ABA Litigation article offers some provocative observations on the process of good mediating.)
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Mike Daisley, Attorney & Certified Mediator, NCDRC

When preparing for mediation, what are the "best practices"?

 

Greetings!  

   

    "...and make sure you prepare for mediation."

 

     You don't know whether to laugh or cry.  As the CLE or luncheon speaker offers this "pearl of wisdom" you nod in agreement, but you also might mutter to yourself: "I spent money for this?"  (Or as my teenager is fond of telling his old man,  "Thank you, Captain Obvious." )  
     Of course, you should prepare for mediation.  The real question is HOW to prepare, or more precisely, how BEST to prepare.
     One of the advantages of being "behind closed doors" with the many good litigators I've served at the hundreds of mediations I've done over the years is getting to see great preparation in action.  (In contrast, I've also gotten queasy when trying to help parties whose counsel seemed to dust off the file that morning just before the conference!)     
Mediation Opening For Defendants
Should a party be prepared for the "empathetic" opening from opposing counsel? 
     One thing I can say for sure.  There is no ONE way. 
It is case specific, naturally.  BUT that said, there are some things I have observed the great advocates do to prepare, which always seem to help their clients' cause.
     Know the issues.   While that seems utterly basic, its importance cannot be overstated.  Failure is simply not an option here, because it screams to the other side: "Don't yield or compromise because I'm not really capable -- much less ready -- to take this to trial!"
     Know the REAL issues.  Yes, there are the allegations and answers, the claims and the defenses.  But what about the human elements? Great advocates understand the feelings of the parties -- the need for vindication or closure or perception of being slighted or ignored.  There are real people behind each manila folder.
     Eloquence is overrated.  A jury speech is best saved, well, for the jury.  The most persuasive advocacy at mediation can have plenty of passion, but it's best kept just below the surface.  Attorney Kenneth Nolan from New York put it well in an article for ABA Litigation:

Your adversary and the mediator won't be swayed by glitzy visuals or tear-jerking harangues. To convince savvy attorneys, you need substance, not flash. A straightforward presentation while acknowledging weakness is effective. You can't bluff your way to a large settlement. 

     ...and so is PowerPoint.  On the right case, and in the right way, a good slide presentation can demonstrate a great command of the facts, provide education on the law and set the stage for good negotiations. But as often as not, it can be boooooooooring as hell, and is almost never worth going past 20 minutes (half-hour tops). 
     Know your weaknesses better than the other side does.  Make a map or chart or list of the most important UNknowns (mainly for yourself and be prepared to demonstrate why they are likely to fall your client's way if the case proceeds.
     Decide who should attend.  A previous Mediation Minute from February 2012 discusses the options here.
     Decide if your client should speak.  As a mediator, I always tell folks during opening session, "This process works best if it ain't just the lawyers talkin'."  And that's true...for most clients.  Decide if your client is one that the other should hear.
 
     It simply cannot be overstated that the mere exercise of mediation preparation yields its own benefits IN EVERY CASE!  Even if a case fails to settle, mediation preparation is a head start to the best future negotiations possible, and ultimately, trial preparation itself.     
     And this is by no means an exhaustive list.  There are others mentioned in my copy of Nolan's article.  And no doubt you have some ideas.  I'd love to hear them, and from you, anytime.
     Anytime you want to "kick the tires" on this or any other gambits, ploys or strategies, just shoot me an email, give me a call or come for a visit. I'll pour the coffee.

     Good luck at your next mediation. 

 

All the best,

                                                 Signature 
Michel C. Daisley
Attorney & Certified Mediator, NCDRC

  

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New to this e-newsletter?  Check out earlier e-ditions and videos of Mediation Minute & "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  Two Words That Can Close The Deal and using my "QUERY Technique" to keep things cool and disarm controlling behavior.  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.  
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