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 […]

Give the Mediator the Tools Needed to Move the Other Side

The starting positions of parties at a mediation are vastly different and conflicting. The mediator’s role is to narrow the differences to the point where the parties reach agreement. To do this, the mediator must change the perception each side has of the strength and value of its case. Among other things, the mediator conveys […]

Provide Whatever the Mediator Needs to Read to Understand Your Case

Preparation enhances a mediator’s performance. A well-prepared mediator will understand the case before counsel give opening statements and will have devised a strategy for leading the parties to a settlement. The mediator is unlikely, however, to review cases or statutes cited by the parties in their confidential statements unless copies are provided. So, where a […]

Select the Right Client Representative

When representing a corporation you sometimes have the opportunity to choose who will attend the mediation as client representative. Pick someone who has the requisite authority to settle the case and a reasonable temperament and personality. Take care to avoid, however, selecting or accepting a client representative who is personally implicated in fraud or wrongdoing […]

Consider Giving Your Client Representative a Speaking Role in Your Opening Statement

Consider giving your clients a carefully prepared but not over-rehearsed speaking role as part of your opening statement at the mediation. Your clients will appreciate the opportunity to say what is on their mind. This may also create an opportunity to show off a good witness to the other side without affording them an immediate […]

Don’t Negotiate Against an Empty Suit

Try to avoid negotiating against an “empty suit,” that is, a client representative who, although physically present, lacks sufficient authority to make the concessions necessary to settle your case. If your client or client representative has settlement authority, he or she is placed at a disadvantage negotiating against one who lacks authority. Recognize, however, that […]

Consenting to Negotiate Against an Empty Chair Is Never a Good Idea

As a mediator, I am sometimes advised by counsel that its adversary has consented to its client representative participating remotely by phone or video. Negotiating against an empty chair, i.e., a party not physically present, is never a good idea. The remote party is not sufficiently invested in the mediation process nor as susceptible to […]

Make Sure That Essential Non-Parties Are Available to Participate in the Mediation

It may not be possible to reach a settlement at mediation without the participation of an essential non-party to the litigation, such as an insurance carrier, lender, guarantor or indemnitor, spouse or significant other. Now that video mediation has come into its own, there is no good reason for an essential non-party not to participate. […]

Consider Retaining a Settlement Counselor to Assist You at Mediation

Settlement counselors are experienced mediators who assist trial lawyers in preparing for and representing their clients at mediations. They can assist you with any or all of: preparing confidential mediation statements, preparing opening statements, evaluating claims and defenses, preparing flexible negotiating plans, and formulating constructive offers and counteroffers. Drawing on their knowledge of the mediation […]

Direct Your Opening Statement to the Opposing Client Representative

A mediation is not a chambers conference, and the mediator sitting at the head of the table is not a judge.  Yet many experienced litigators turn toward the mediator to make their opening statements, even though the mediator lacks judicial powers to decide issues of law or fact or to require any party to make concessions. […]