As I discussed in previous blogs (see the links below), very few cases make it to trial anymore. Instead, there has been a marked shift in the past twenty years to facilitate settlement through Alternative Dispute Resolution (ADR). Mediation or facilitation is a non-binding form of ADR as opposed to arbitration, which is fully binding and case evaluation, which is quasi-binding.
Both clients and attorneys have a lot of work to do to get ready for any kind of mediation, and it is analogous to preparing for trial. Today, I’d like to focus on what the client needs to know and be prepared for as they face upcoming mediation.
- Clients should feel confident that they trust and have a good working relationship with their attorney. Mediation is one of the few events in litigation that requires a client to spend a significant amount of time with their attorney. Hours can be spent during the initial interview, deposition preparation and the mediation itself.
- Be sure you and your attorney have gone over these key areas: known facts, disputed facts, liability, damages, defense. These are all critical components of your attorney’s strategy and you need to understand all of these aspects of your case.
- Be ready to hear things you may not want to hear. It’s really important that the client allows the attorney to deliver all of the news, the good and the not-so-good. Otherwise, you can’t be fully prepared for less than ideal outcomes. So you have to allow your attorney to tell you what you need to hear, not just what you want to hear.
- Be sure you can state with clarity what the strengths and weaknesses of your own case are. Your attorney should be able to clearly tell you what these are. In the best case, that “smoking gun” that could derail your process should not be a surprise to the attorney or the client, but something they have discussed already as a possible roadblock.
- Be prepared for tough questioning from the mediator. Allow your attorney to role play, so you can feel comfortable, even in confrontation. Allow your attorney to “play devil’s advocate” during these meetings, so that you can see what upcoming proceedings might include.
- Come up with a reasonable monetary figure that you can live with. If you enter into mediation and are not prepared for any point of compromise, the effort is likely a waste a time and money. Don’t expect the moon but don’t give away the store either. Ask your attorney to compare the costs of mediation with the cost of a trial, particularly an extended one. Use this information and consider the cost savings of mediation as you try to estimate the appropriate settlement amount.
Preparing for mediation mirrors the preparation for trial, but in a condensed time frame. Clients should choose an attorney with experience in mediation, with whom they can work intensely, and who is forthright and diligent.
By Adam Kutinsky, Member, Dawda, Mann, Mulcahy & Sadler, PLC
Previous blogs about mediation written by Adam Kutinsky: