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MEDIATIONMINUTE:
Some negotiating "resolutions" 
to consider for the New Year...
A recent ABA teleconference offered some interesting strategies.                                                                                                         January 2015
Lean to the Left!
Mike Daisley 
Civil Litigation Attorney and Certified Mediator, NCDRC


      

     Recently, I had the chance to participate in a national webcast on best practices and innovative strategies for litigators to consider in Mediation or Judicial Settlement Conference.  The discussion resulted in a pretty good "resolutions list" for anyone wanting to explore a few new paths to better outcomes in 2015.

  • Empower the client. It is, after all, the client's case.  Meet with your client in advance of mediation.  Discuss the process, the likely cast of characters, the chance to learn the other side's concerns and strategies, etc.  Analyze the factors in determining a good "settlement range" and be careful not to "lock in" a position or draw a "line in the sand." Most of all, listen to your client's needs. Go into the mediation on the same page and looking to learn new information.
  • Take advantage of the ONE opportunity to address directly the other side. Great consideration should be given to whether the client should do most (or even any) talking. The conventional practice is that clients are mere decoration in opening session, but if your client is strong, it may be very persuasive let the other side know that first hand.  Also, most of the panel seemed to agree that addressing the other side directly -- eye to eye, and with a civil, reasoned but determined tone -- can often "soften" that other side, and make them more open to moving to your position. And that really should be the polar star guiding your strategy -- "Does this action get the other side to move closer to our view of the case?"
  • Take advantage of EARLY mediation.
     I discussed before my own preference for an "ERTL" approach ("earlier rather than later") of mediation in litigation, but it was good to hear others voice the same opinion. The saving of costs is a big factor, of course, but it also provides an early focus of those issues that are the biggest hindrance to resolution.
  • Make the mediator/neutral part of your team.
    Work with your mediator and ask him/her for advice as to the next move, or the efficacy of different strategies, to get the mediator to lean more to your view of things.  Good mediators, of course, will be wise to what you are trying to do; but the best mediators will also appreciate your equipping them with your best thoughts, and making sure they have all information needed to "take down the hall" to negotiate with the other side.

     This barely scratches the surface. There were many more insights to digest and ponder, not just as a mediator helping parties in conflict to resolve matters in a way that serves their best interests, but also as an advocate fighting for my own clients. 

      

      As always please remember any time you want to "kick the tires" on any case -- whether it's going into mediation next week or you are just thinking through the pleadings -- please feel free to give my office a call (704-887-6776) or just email me.  I'll keep the coffee-maker plugged in!

 

     All the best,

   Signature 

    Michel C. Daisley    

    Attorney & Certified Mediator, NCDRC  

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For more quick tips on making your best case at mediation, check out these links to past videos and e-newsletters...


 

 
The Best Lessons Learned from the ABA's Advanced Mediation and Advocacy Conference
Video - Plaintiff's Opening 
Some opening Gambits for Plaintiffs...
MCD Video Frame 
...and the defense!


 

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