www.ober.com mediation – when to use and how to make it effective june 20, 2012 moderator:rebecca...
TRANSCRIPT
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Mediation – When to Use and How to Make It Effective
June 20, 2012
Moderator: Rebecca A. Young
Speakers: The Honorable Melanie A. Vaughn and Kelly M. Preteroti
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How is Mediation Defined?
Mediation is a negotiation facilitated by a third-party neutral
Mediation means different things to different people
May be directive and evaluative or non-directive non-evaluative
Universally, mediation is an opportunity for your client to choose the outcome of his/her/its case
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What are the different types of mediation?
Facilitative
Evaluative
Transformative
Hybrid
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How does one end up in mediation?
Court-ordered
Federal vs. State
Private
Administrative
Early and often
When to mediate?
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What factors should be considered in determining whether and when to mediate? Whether to mediate:
Do the parties need a decision of law? Does a party require precedent for future cases? What do clients want and what do they really
need? When to Mediate:
Consider what the value of the case is pre-discovery and post-discovery, pre-trial and post-trial
Identify your and your adversary’s best and worst case scenario if the case went to trial
Identify the risks of foregoing mediation
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Mediation is not a sign of weakness
Litigation is not cheap, especially under the “American Rule”
Allow your client to get a sense of the costs of litigation
The elephant in the room – financial, ethical and strategic considerations
How do you encourage your client to participate in mediation?
How do you encourage opposing counsel (or co-counsel) to participate in mediation?
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How do you identify the appropriate mediator? Think about what you want from the mediator
and why
Consider: The mediator’s prior experience as a lawyer or
judge The influence the mediator will have on opposing
counsel, the opposing party and your client The mediator’s style
Facilitative, authoritative, or evaluative Consider the mediator’s flexibility and process
skills
Interview your mediator, if you can
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How to mentally prepare your client for mediation? Communicate with your client and manage
your client’s expectations Mediation may mean compromise, but can also
mean that the parties get most of what they need (perhaps not everything that they want)
Discuss creative settlement options Are the non-monetary options or sweeteners?
Discuss the risks with proceeding through discovery and/or trial If your risks are high, your goals in mediation may
need to be further from your best case scenario
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Understand your client’s high/low settlement value of the case
Discuss the role your client will play in the mediation
Determine what are your client’s real, underlying interests
How to mentally prepare your client for mediation?
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How to physically prepare your client for mediation? Discuss whether your client is comfortable
sitting and communicating with the opposing party
Consider whether caucusing would provide a more/less effective mediation environment
Be flexible and keep your options open and encourage your client to so
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How to prepare your case for mediation?
Plan, prepare and strategize
Plan how you want the mediator to perceive you, your case and your client
Prepare a written Confidential Mediation Statement
Strategize about creative settlement options
Why “pick up the file and go” does your client a disservice
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What should be included in the Confidential Mediation Statement? Statement of the case
Factual issues
Legal issues
Strengths and weaknesses of your case
Prior settlement negotiations
What a mediator looks for in the Confidential Mediation Statement
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What to expect and watch out for during the mediation? Expect to wear different hats
Advocate, therapist, voice of reason, devil’s advocate
Mediation is a great venue to resolve factual misconceptions
Talk your client “off the ledge”
Consider how your proposal will be perceived by the other party
Work with and use a mediator to your best advantage, don’t fight a settlement
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How to avoid common mediation pitfalls?
Make an opening remark NOT an opening statement
Be creative in arriving at a settlement
Although a global settlement is ideal, consider whether a partial settlement of some of the issues makes sense
If you reach an agreement get the basics down, in writing, signed by the parties
Set deadlines for completing the final documents
Make sure the mediator acts as the “case manager” at the end and that the lawyers and clients go over every agreed upon point