The Better Chancery Practice Blog

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

Acknowledge the Weaknesses in Your Case

Mediation is a process which requires a candid self-examination of the client’s case. Mediators will frequently demand that counsel admit those weaknesses in the presence of the client. Credibility may be lost if weaknesses are not acknowledged, at least in the private sessions with the mediator. When the client hears the attorney acknowledge a weakness, it often vicariously allows the client to acknowledge it as well. Often, attorneys are reluctant to admit weaknesses while the client is present. Instead they may stretch for arguments to support less tenable positions or attempt to avoid the issue entirely. Good mediators, however, are able to smoke out such bluffing and evasive answers.

Substantiate Your Position to the Opposing Party

Often lawyers assume prior to mediation that the facts of the case are clear or that the evidence is undisputed. This is a mistake which can be avoided. In advance of the mediation, be sure you have all of the evidence necessary to establish your claims or defenses. Evaluate the strength of the evidence on each element for credibility, reliability and accuracy. Then, be sure the opposing party is provided with documentation supporting your position. It is fundamental to any negotiation that the opposing party have all the information necessary to understand and evaluate your position. Too often, attorneys wait until the mediation is imminent to provide evidentiary materials to the opposing party. In personal injury cases, medical expenses, hospital records, economic reports and life care plans are of no value if they have not been provided to the other party sufficiently in advance for review by those who will make the ultimate decision on settlement.

Anticipate challenges to the accuracy of your evidence by the opposing party and bolster your case, if necessary, in advance of mediation. This will help prevent the other side from arguing that facts which are actually established or irrefutable are in dispute, a common mediation technique.

Tagged: mediation