Provide the Mediator with an Effective Mediation Statement.
Many mediation statements lack information essential to the Mediator’s understanding of the case. An effective statement will be submitted on time and will include: 1) a brief statement of facts, issues and positions; 2) attached critical pleadings, e.g., complaint, answer and affirmative defenses, pending motions for summary judgment, important orders entered by the court; 3) […]
Submit Your Mediation Statement to the Mediator on Time.
Mediation is mandatory in our trial courts and settles a substantial majority of cases – less than 2% are resolved by an actual trial. Mediation is most often a case dispositive proceeding, so treat it as such and prepare for it as diligently as you would for trial. A mediation statement whipped up at the […]
A Plaintiff That Allows a Defendant to Pay in Installments Should Insist on an Appropriate Penalty in the Event of Default.
A defendant at a mediation will often lack the ability to make a lump sum payment sufficient for plaintiff to agree to a settlement, so a settlement can be had only if plaintiff agrees to allow defendant to make some number of installment payments. Where feasible the plaintiff may demand an enhanced lump sum down […]
Prepare Your Client for Mediation.
Your client is the ultimate decision maker at the mediation and needs to be well prepared in advance to fulfil this role. You have an ethical duty to keep your client informed about the case. Make sure your client understands and appreciates both sides, including the weaknesses and uncertainties of its own case. Prevent having […]
Alert Your Mediator and the Other Side in Advance That a Defendant Has Limited Ability to Satisfy a Money Judgment.
Often at mediation a defendant asserts the so-called “uncollectibility defense”, i.e., a lack of non-exempt assets sufficient to satisfy a money judgment, which, if true, may moot the plaintiff’s case. This claim is nearly always met with skepticism, and will carry no weight unless credibly documented, so raising the claim for the first time at […]
Don’t Fall in Love with Your Pre-Mediation Valuation of Your Case.
Don’t fall in love with your pre-mediation valuation of your case. Granted you want to negotiate a settlement commensurate with the fair value of your claims or defenses, but so does your adversary, who will ascribe a much different value to the case. Although counsel for each side may evaluate the case, neither of them […]
Bait the Hook to Suit the Fish.
Not all mediation settlements are as simple as defendant writes a check and the parties exchange releases. Even terms of payment – timing, security, default remedies – can be contentious. A mediating party focuses on what it needs to receive but must also consider what it is willing to give to get it. Your mediator […]
Don’t open with your best offer.
Don’t open with your best offer. Even if it really is your best offer, it is all but impossible to convince an adverse party that it is. One and done almost never happens and opening with your best offer leaves you no room to negotiate. Once your offer is rejected, attempting to go backwards, i.e., […]
Some Yearend Takeaways
Here are some yearend takeaways re mediation advocacy:
Take Advantage of the Procedural Flexibility Inherent in Mediation.
Unlike trial courts, which operate under elaborate procedural rules, mediation has no formal procedural requirements – just a few customary procedures, e.g., joint opening sessions, opening statements, separation of the parties for caucus bargaining. Mediators are free to proceed as the situation may require or as the parties may request. If the parties request, for […]
