Do's and Don'ts of Mediation
DO:
1. Send the mediator a confidential mediation statement. At a minimum, send the mediator non-privileged documents, such as Plaintiff's Petition, expert reports, and damages documents. Many attorneys skip this because they're busy, but the mediator needs to prepare in advance of mediation and this benefits everyone involved. Send the mediator what you can, if only by quick fax or email.
2. Have someone present at the mediation with settlement authority, or if necessary, contact opposing counsel and the mediator to address whether such person may appear telephonically.
3. Separate the people from the problem. No matter what you may think of the opposing party or counsel, always remember that you are mediating with the desired end result of resolving this dispute for your client.
4. Listen. Listen to your client, the mediator, and the opposing side. You may discover interests or common grounds or solutions that you never thought of before.
5. Make an offer of a firm dollar amount to each party individually in a case with multiple parties on the other side. Do not make a global offer to all or multiple parties on the other side, and leave them to "split the pot" or "come up with the money" collectively between themselves.
6. Communicate to the mediator specifically if and when you want them to tell the other side something. The mediator will presume all communications with you are confidential unless told otherwise.
7. Abide by court-ordered mediation deadlines. If necessary, amend any scheduling order to allow the parties additional time to mediate.
8. Be pleasant, respectful, and courteous to everyone involved, even when firm in your stance. One of the most wise litigators I know once told me "wouldn't you rather pay money to, or accept money from, someone you like?" Further, information in a mediation or negotiation context, is valuable. It helps to pinpoint and understand the parties' positions. It is easier to get information from the other party or other counsel, if they like you. They will be more likely to share information in a negotiation which can help bridge an impasse, if they like you. If the opposing side dislikes you, negotiating in a mediation setting with them will be much more difficult and less likely resolve your case.
9. If settling, make sure to include a time period (14 to 30 days is standard) in the Memorandum of Understanding drafted by the mediator during which time all claims are to be dismissed with prejudice, and all funds are to be paid, prior to leaving the mediation.
10. Remember the tax consequences of characterizing settlements. For instance, settlement funds for personal injuries are non-taxable versus lost earnings are taxable.
11. Consider what will be your strategic answers to certain expected strategic questions prior to the mediation. These questions may come from the other side's representatives, or the mediator during the mediation. Your failure to respond properly, or even at all, may reveal information that you don't want to reveal.
DON'T:
1. Expect the other side to bid against themselves. This violates the rule of reciprocity in negotiating. 'Quid Pro Quo' always applies.
2. Use the term 'final offer' until it really is.
3. Confidentially tell the mediator your bottom line or maximum offer at the beginning of the mediation. That way the mediator will not, conscientiously or not, shoot for a settlement in the amount of the bottom line or maximum offer the entire time.
4. Skip the joint session at the beginning of the mediation. Oftentimes one or more parties wants to 'have their day in court' or their say about the dispute. Allowing this to happen, even if only through the well-chosen words of their attorney, can make or break settlement discussions early in the process.
5. Allow your settlement authority to be casual about staying next to the telephone when he or she is appearing telephonically because their office location is in another state. The mediator and opposing counsel have extended the courtesy to you to allow them to appear telephonically, and the settlement authority figure must appreciate that fact and always be available during the mediation.
6. Forget about insurance liens or medical liens involving your client's claims. They must be accounted for prior to settlement. Be aware of indemnity provisions in settlement agreements indemnifying defendants from such future claims. I have seen a number of instances where parties settled a matter and forgot about outstanding insurance subrogation interests. Since such interests are derivative of the insured's claims, settlement of the insured's claim can extinguish the insurance company's claims and cause a host of later problems for all parties involved and their counsel as well. The parties and their counsel MUST account for such liens and document who will pay them if and when they are asserted.
7. Forget to leave your ego at the door. Ego should never get in the way of a winning situation for everyone.
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