The Better Chancery Practice Blog

This is Part III of the series on Mediation by Don Dornan. Jr., of Biloxi.

Develop a Strategy

Attorneys who have consistently achieved good results in mediation have followed at least two rules. First, they have made a realistic evaluation of the potential settlement and verdict ranges of their case, along with the risks of proceeding to trial, and will have discussed them fully with their client. Additionally, successful attorneys devise a negotiation strategy similar to a game plan which will help them reach their objective. A cogent discussion of the risks and ramifications of trial and other potential weaknesses will be critical to establishment of a realistic mutual goal.

For example, the client’s confidence in his lawyer can be adversely impacted if he learns for the first time during mediation of some risk, such as summary judgment or punitive damages, which was not explained to him earlier. An experienced mediator is likely to ask about these issues. Therefore, the lawyer is well advised to have the client prepared for and read to discuss all potential pitfalls.

The mediation game plan should be planned in advance yet be flexible enough to account for the opponent’s actions. Preparing the client and obtaining sufficient settlement authority are important aspects of the overall strategy. Access to the client and lines of communication to other persons with authority should be established in advance.

Be Punctual, Courteous and Attentive

The mediation date is an important event in the life of any lawsuit. It should be treated with the same level of importance as a court hearing. Lawyers and their clients should be on time for the mediation. Tardiness and last minute scheduling conflicts are poor excuses and do not enhance the credibility of the lawyer or the case. Nothing gets a mediation off to a poorer start than for the lawyer to be late while his client sits patiently awaiting his arrival. In addition to being unprofessional, tardiness rarely promotes resolution.

The Joint Session

A typical mediation begins with a joint meeting of all participants presided over by the mediator. The mediator usually delivers a brief preamble and overview of the mediation process and secures a commitment to proceed from the parties. The mediator will customarily invite each party to make an opening statement or position statement. This is the time when counsel are allowed to set forth a summary of the case and their position on the disputed issues. Because all participants are present, the position statements are delivered to a captive audience which is obligated to listen quietly to the other side’s arguments.

Some lawyers are reluctant to submit their clients to a joint session for fear that the opponent’s opening statement will inflame the client and make compromise more difficult. This viewpoint is usually inaccurate. The joint session and opening statements are almost always useful or at least not counterproductive.

Beyond disclosing each side’s position, the joint session has the following advantages:

It identifies the issues which are in dispute and those which are undisputed.

It allows clients to hear the other side’s position for themselves. While they will not likely agree with what they hear, the opponent’s position will be confirmed in the mind of the client. This helps underscore the uncertainty of litigation which must be acknowledged in order for the client to make meaningful compromises.

It can encourage parties to ventilate and begin the process of emotional runoff which will hopefully translate into a willingness to compromise.

Listening to the opponent’s position statement introduces the client to the reality of a contested adversarial proceeding and provides a preview of the trial.

Tagged: mediation