MEDIATION: The Most Effective Forum to Resolve Your Case

The Golden Rule: Preparedness, Preparedness and Preparedness

A major consideration in considering Mediation is whether you have enough information about your case to fully and fairly evaluate it. Unfortunately, many lawyers go to mediation with their clients, and at the end of the day walk out frustrated, embarrassed and finding themselves frantically trying to explain to their clients why the matter did not settle. Why does this happen?
The simple rule of the three P’s applies here: Preparedness, Preparedness and more Preparedness. You can never be overly prepared. Coming to the Mediation having completed significant discovery is crucial. If you are defense counsel, discussing the case in detail with your client or the handling adjuster prior to the mediation cannot be overstated. Client control plays a significant role during the mediation process, as well. Have you discussed the important issues with your client/principal? Have you prepared your case such that you will be able to discuss all the issues of contention?

If it is a personal injury matter, issues of causation and extent of injury are sure to be ripe issues. Without client control, you will undoubtedly encounter numerous hurdles in your efforts in convincing your client to agree with any settlement proposal. If you are defense counsel, being prepared means having spent time with your principal in discussing the strengths and weaknesses of your case and how best to communicate this to the mediator, who can assist you in your strategy in the negotiation process.

Being prepared also means coming to the mediation with a realistic outlook of the merits of the case. What is the value of your case given your best scenario vs. your worst scenario? What is your comfort zone for a realistic settlement? Are you willing to exit your comfort zone in the spirit of compromise if it means the case will settle?

As part of your preparation, you need to consider these important questions prior to mediation. Providing a brief to the mediator prior to the mediation is extremely helpful, so that the mediator will have a good idea as what the areas of contention are and will be apprised of the parties’ respective positions prior to the negotiation.