Video Mediations Are Here to Stay

Since early in 2020, I have been conducting all my mediations by online video and obtaining good results. Even when conditions return to normal, I shall continue to conduct mediations by video whenever the parties agree to it. In my experience video mediations result in successful resolutions as often as those where the parties physically […]

Mediate When Your Case Is Ripe for Settlement

To achieve cost efficiency, lawyers will sometimes seek a mediated settlement at the inception of a case. But before discovery all the lawyers know about the case is what their own clients have told them. The result is a vast disparity between opposing case valuations and overconfidence on one or both sides. So unless the […]

Prepare a Case Valuation Analysis

Meet with your client before a mediation to prepare a case valuation analysis to determine what concessions your client should be willing to make to settle the case. Take into account the most likely result at trial, the possibility of a resolution based on a pretrial or post-trial motion, the likelihood or possibility of appeals, […]

Don’t Fail to Take into Account All Relevant Factors When Valuing Your Case

When valuing their case, lawyers too often omit significant factors. Some will simply adopt a value equal to their best day in court. Others will discount that value by a too optimistic risk factor. Costs of litigation and the risk that a defendant will prove uncollectible are overlooked or underestimated.  Rarely will their valuation reflect […]

Have a Negotiating Plan

Your case valuation analysis tells you only the extent of the monetary and other concessions your client is prepared to make. You also need a plan for how you will parcel out those concessions at the negotiating table. The plan should provide for tapered concessions – your largest move first with each move thereafter smaller […]

Read Critical Documents Thoroughly and Carefully

In several breach of contract cases I have mediated lawyers have managed to overlook clear contractual language that should have been case dispositive for their clients, winning language hiding in plain sight. Perhaps those lawyers merely skimmed lengthy contracts or relied on misleading section headings or were distracted by multitasking. So do yourself and your […]

A Mediation Is Your Client’s Day in Court

Most clients have an emotional stake in their lawsuits. They want to have their day in court – to have their stories told at a trial and to see justice done there. Ninety-eight percent of the time, however, their cases will be disposed of without a trial. With the help of an experienced mediator, a […]

Speak Privately with Your Mediator in Advance of the Mediation

After you have submitted your mediation statement, if you don’t receive a timely call from the mediator, call to make sure the mediator understands your legal case. Also, use the opportunity to discuss relevant related issues, such as the parties’ expectations and priorities; has there been enough discovery that the case is ripe to mediate; […]

Help the Mediator Change the Way Your Client Views the Dispute

The parties normally have an emotional reaction to the litigation. Their view of the dispute is visceral, not rational: “They done us wrong!” This point of view distorts their judgment and leads them to make unrealistic demands and to interpret anything an opposing party says or does in the worst possible light. The mediator will […]