Mediation for Civil Litigators
Issues and Solutions
If the report is weak or deals with factors that are not central to the main issues in the case, it may be very proper to proceed without a responding opinion. I have seen many mediations at which one counsel criticizes another regarding the late delivery of an expert's report, but then continues with the process and settles the case.
Mediation is a word that describes a process. As with any legal process, mediation presents several issues that confront the practitioner. After all, mediation involves parties, pleadings, briefs, issues analysis, preparation, and research — just like discovery, pretrial, and trial. One major distinction is that in mediation everything said and done (short of an actual settlement) is off the record. Therefore, both litigators and their clients are free from many of the constraints that are forced on them by the “with prejudice” rules of practice and conventions.
This handbook raises and confronts many of these issues. The perspective of the litigator is different than that of the mediator ; the perspective of the inexperienced litigator is different than that of the seasoned one. Each dispute is unique; each type of dispute is unique. All of these differences invite a discussion of those issues from different perspectives.
Central to the mediation process is the art of negotiation. Law school rarely trains lawyers well in negotiation skills . How can they suddenly become experts as they walk into mediation? The same question could be asked at the time of pre-trial and trial, but the default is that failure to settle leads to trial. The whole purpose of mediation is to consider settlement. Therefore, much of this handbook discusses negotiation tactics. This handbook presents negotiation issues within the context of mediation, not negotiation in the abstract.
This handbook is unusual in that it offers perspectives from several mediators. Some commentaries overlap with others, and some opinions conflict with those expressed in the handbook and with opinions expressed by other mediators. Readers are invited to draw their own conclusions. Some of the commentaries suggest controversial tactics; some are more mainstream; and some appear to sit on the fence, discussing alternate views without taking a position. These positions reflect the attitude of the mediator who wrote the commentary.
To preview this handbook, click here.
Mediation is a word that describes a process. As with any legal process, mediation presents several issues that confront the practitioner. After all, mediation involves parties, pleadings, briefs, issues analysis, preparation, and research — just like discovery, pretrial, and trial. One major distinction is that in mediation everything said and done (short of an actual settlement) is off the record. Therefore, both litigators and their clients are free from many of the constraints that are forced on them by the “with prejudice” rules of practice and conventions.
This handbook raises and confronts many of these issues. The perspective of the litigator is different than that of the mediator ; the perspective of the inexperienced litigator is different than that of the seasoned one. Each dispute is unique; each type of dispute is unique. All of these differences invite a discussion of those issues from different perspectives.
Central to the mediation process is the art of negotiation. Law school rarely trains lawyers well in negotiation skills . How can they suddenly become experts as they walk into mediation? The same question could be asked at the time of pre-trial and trial, but the default is that failure to settle leads to trial. The whole purpose of mediation is to consider settlement. Therefore, much of this handbook discusses negotiation tactics. This handbook presents negotiation issues within the context of mediation, not negotiation in the abstract.
This handbook is unusual in that it offers perspectives from several mediators. Some commentaries overlap with others, and some opinions conflict with those expressed in the handbook and with opinions expressed by other mediators. Readers are invited to draw their own conclusions. Some of the commentaries suggest controversial tactics; some are more mainstream; and some appear to sit on the fence, discussing alternate views without taking a position. These positions reflect the attitude of the mediator who wrote the commentary.
To preview this handbook, click here.
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