Successful Strategies In Mediation

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Successful Strategies In Mediation

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ADR Update<BR>

by Gregg Relyea

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After serving as the mediator in a number of litigated cases, several strategies

used by lawyers have emerged as particularly successful. Among those are

setting expectations of case value early with the client and opposing counsel,

preparing the case in a manner that is specifically adapted to the mediation

process and using constructive negotiating techniques.

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Set Expectations of Case Value Early. When new information that may materially

affect the value of a case is disclosed for the first time during mediation,

one comment heard from mediation participants has been, "We are talking about

different cases. I evaluated the case based on information that is now apparently

outdated. We can't settle the case now."

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To position a case for settlement in mediation, attorneys can influence the

expectations of their clients and their adversaries from their initial contact.

Without committing to specific monetary values, counsel can convey their

impressions of the relative value of a case by placing it in the context

of other more or less valuable cases. With clients, attorneys can communicate

realistically about the strengths and weaknesses of a case, costs, probabilities

of success and the financial and other consequences of a loss.

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With opposing counsel or an insurance adjustor, counsel can voluntarily exchange

discoverable information concerning medical expenses, wage loss and other

items of damages. Any significant changes in the nature or overall value

of a case can be communicated on an ongoing basis so the adversary has the

opportunity to consider and, where appropriate, revise their evaluation of

the case. Using these techniques, all parties will be "talking about the

same case" when it arrives at the table for mediation.

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Prepare Carefully for Mediation. Counsel who secure favorable settlements

in mediation are able to articulate the manner in which they calculated the

value of a case and are able to support their evaluation with relevant documents.

Some mediations can reach an impasse if a party asserts a claim without

appropriate documentation for it. Claims that are based on items of damages

that are historically difficult to evaluate, such as lost commissions, lost

wages or lost business opportunities, should be particularly well documented.

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Use Constructive Negotiating Techniques. Maximizing a settlement typically

involves the establishment of a constructive, albeit at times competitive,

working relationship with opposing counsel. For example, I have observed

that attorneys can increase their chances for a favorable settlement by

demonstrating professional respect for their adversary, focusing the dispute

on the issues rather than the people, and avoiding the use of "door closing"

statements during negotiations.

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In mediation, a zealous advocate may be inclined to state, "Mr. Smith (the

opposing counsel) does not know what he is talking about. His client is a

well-known deadbeat when it comes to debts of this nature. There are several

recorded judgments against him. We've given him our bottom line, take it

or leave it."

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Ordinarily, a mediator will step in to re-frame the issues raised by such

comments in a neutral and constructive manner. The attorney who was the object

of the comments, however, also has the opportunity to constructively respond

by stating, for example, "I am aware of the judgments you referred to, but

they were the product of summary proceedings, so they cannot have any dispositive

effect in this proceeding."

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The strategies cited about represent only three effective methods currently

being used by attorneys in mediation. As attorneys continue to use mediation

with increasing frequency, additional strategies will develop for securing

favorable settlements. Because mediation is a structured yet relatively informal

process, attorneys preparing for mediation should give greater consideration

to negotiating principles and strategies than to the presentation of the

case in a formal manner, as would be appropriate for arbitration or trial.

Maximum settlements through mediation are most likely to occur where the

attorneys develop strategies that acknowledge the facilitative role of the

mediator.

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Gregg Relyea is a mediator, arbitrator and neutral fact-finder for

JAMS/Endispute.

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