Tips from Mediators |
To help young lawyers navigate the tricky landscape of mediation, below are some valuable tips from some successful and respected mediators, based on the following scenarios and questions. Please click on the questions for links to the mediators' tips or go to the drop-down menu for this page to review a list of topics.
For more tips on mediation, check out John's handbook, Mediation for Litigators, Issues and Solutions, (published by Irwin Law and available for purchase in paper of e-formats here)
For more tips on mediation, check out John's handbook, Mediation for Litigators, Issues and Solutions, (published by Irwin Law and available for purchase in paper of e-formats here)
1. A young litigator is presented with a file a few days before mediation. The partner in charge has thoughtfully provided two detailed mediation briefs, one from each side. The young litigator is not familiar with the file or the client, but is comfortable with the area of law. What advice would you give the litigator about how to prepare for the mediation?
2. How would you advise the young counsel to deal with a client who will not see reason? For example, in caucus an offer is received that the young lawyer recommends. The client rejects it for reasons that appear to be silly, at least to the young lawyer. What role, if any, should the mediator play, in such a situation?
3. A party in a mediation gives information to the mediator "in confidence." The mediator believes it would be of substantial value in helping resolve the matter if it were made known to the other side. What should the mediator do? If the lawyers are novices, does this change your opinion?
4. One of the most difficult moments in a mediation arises when the parties have expressed their positions. It is time to discuss settlement. Dependent upon liability, the case may involve a fixed sum, general damages or a number of damages calculation options. Who makes the first offer? When should that offer start to bridge the gap between the amount claimed and zero?
5. To prepare a mediation brief: What do mediators want to see in it? How long should it be? How much detail should it contain? What exhibits should be included? What initial offers should be presented? How much advocacy should there be?
6. Lawyers unfamiliar with mediation often are trapped into an “us vs. them” mentality. How can they switch to a “win-win” mentality? How can they modify the outlook of their clients to do the same? What role should a mediator play in this process?
7. Sometimes mediation is not mandatory. In such cases, when does it make sense to mediate? When does it not make sense? What is your experience as to the success rate of mandatory vs. Voluntary mediations?
8. Emotions can dominate reason. How should a young lawyer deal with a client’s emotions that interfere with the path to a suitable resolution?
9. The parties are ready for mediation. At the last moment the young lawyer receives new evidence or an expert report from opposing counsel that impairs the prospects of the case. What should the young lawyer do – adjourn or proceed full-speed ahead?
2. How would you advise the young counsel to deal with a client who will not see reason? For example, in caucus an offer is received that the young lawyer recommends. The client rejects it for reasons that appear to be silly, at least to the young lawyer. What role, if any, should the mediator play, in such a situation?
3. A party in a mediation gives information to the mediator "in confidence." The mediator believes it would be of substantial value in helping resolve the matter if it were made known to the other side. What should the mediator do? If the lawyers are novices, does this change your opinion?
4. One of the most difficult moments in a mediation arises when the parties have expressed their positions. It is time to discuss settlement. Dependent upon liability, the case may involve a fixed sum, general damages or a number of damages calculation options. Who makes the first offer? When should that offer start to bridge the gap between the amount claimed and zero?
5. To prepare a mediation brief: What do mediators want to see in it? How long should it be? How much detail should it contain? What exhibits should be included? What initial offers should be presented? How much advocacy should there be?
6. Lawyers unfamiliar with mediation often are trapped into an “us vs. them” mentality. How can they switch to a “win-win” mentality? How can they modify the outlook of their clients to do the same? What role should a mediator play in this process?
7. Sometimes mediation is not mandatory. In such cases, when does it make sense to mediate? When does it not make sense? What is your experience as to the success rate of mandatory vs. Voluntary mediations?
8. Emotions can dominate reason. How should a young lawyer deal with a client’s emotions that interfere with the path to a suitable resolution?
9. The parties are ready for mediation. At the last moment the young lawyer receives new evidence or an expert report from opposing counsel that impairs the prospects of the case. What should the young lawyer do – adjourn or proceed full-speed ahead?