Friday, June 28, 2013

Mediation Dos and Don’ts

Attorney Teresa Beck has collected this advice from experienced mediators. Here are the headlines:

Things Lawyers Should Do for Successful Mediation:

Exchange mediation briefs.

Exchange at least one demand and one offer before mediation.

Have a pre-mediation telephone conference with the mediator.

Request early mediation if warranted.

 Things Lawyers Should Not Do During Mediation:

Don't engage in surprise negotiations.

Don't reject a proposed mediator because you are not familiar with her or him.

Don't say “take it or leave it” unless you mean it.

Don't burn bridges

Additional Tips from Counsel
Interestingly, none of the mediators interviewed for this article stated that attorneys should disclose their client’s bottom line to the mediator. It is therefore reasonable to conclude that this information is not helpful to mediators, and this conclusion is consistent with my experience. When the mediator knows what authority there is to resolve a case, cases often settle at that number. For counsel trying to settle for less than their authority, disclosing the bottom line to the mediator is not a good idea. Further, disclosing full authority can result in a situation where counsel loses control of the process, and all the work is on the mediator to make the numbers work. This is not a good plan for quick resolution.

You can read the full article here


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