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Transcript

  • 1. ALTERNATE DISPUTE RESOLUTION TACTICS AND STRATEGY IN MEDIATION Robert A. Allen ALLEN, STEIN & DURBIN, P.C. William J. Maiberger, Jr. WATTS LAW FIRM, L.L.P.
  • 2. The Art of Selling a Horse Whether you are in a HIGH STAKE MEDIATION or LOW STAKE MEDIATION BE THE COYOTE AND THE SHEEP DOG
  • 3. THE MEDIATION TOOL BOX 1 3 Why Mediate? 5 TACTICS TO USE Strategic Timing DURING MEDIATION 2 4 Cases Ripe for Selecting a Mediation Mediator
  • 4. BENEFITS OF MEDIATION V. LITIGATION Allows a quicker method of resolution Mediation is less expensive than trial Allows corporate parties to maintain their relationship Allows a neutral party to remove or diminish animosity, confrontational actions and attitudes MEDIATION WORKS!!!!
  • 5. SELECTING A MEDIATOR Choose the mediator based on individual reputation in legal community Must be effective and not merely a message carrier IF DEFENSE CASE IS STRONG - use former Plaintiff attorney to add credibility to the Plaintiff’s weaknesses IF DEFENSE CASE IS WEAK - use a mediator that does not have a strong Plaintiff background and that will minimize damage valuation IF PLAINTIFF CASE IS STRONG - take first choice for mediator made by Defendant IF PLAINTIFF CASE IS WEAK - pick mediator that will be your advocate. DO NOT CHOSE A MEDIATOR BASED ON SAVING MONEY
  • 6. STRATEGIC TIMING (Mediating Early v. Late) Timing is critical to achieving a favorable settlement Fact or Myth - Mediating early yields a higher settlement, but saves substantial litigation costs Fact or Myth - Mediating late yields a lower settlement, but much more has been expended in litigation costs IF DEFENSE CASE IS STRONG - mediate only after the completion of significant discovery IF DEFENSE CASE HAS A SMOKING GUN OR UNRELATED BUSINESS VULNERABILITY - mediation prior to significant discovery IF PLAINTIFF IS VULNERABLE FROM A FINANCIAL STANDPOINT mediate early FROM A PLAINTIFF PERSPECTIVE, MEDIATE EARLY, LATE AND OFTEN.
  • 7. GAME TIME (Mediation Tactics) Opening Statement Tactics During Mediation Closing the Mediation
  • 8. KNOW YOUR OPPONENT Research Verdict History Texas Trial Reporter The Blue Sheet Research Trial Tendencies Jury Selection Opening Statements Witness Examination Closing Arguments
  • 9. Mediation Presentation (A mini-trial) BE PREPARED - Do not be “lulled” into “winging” mediation -a weak Plaintiff will continue litigation due to defendant’s perceived incompetence -plaintiff will perceive lack of interest Have a complete understanding of the facts, the law and the evidence The client should be well educated on the facts, the evidence and their role during the mediation Plaintiff/Defendant - optimize your first impression and only opportunity to address the decision maker. Plaintiff - USE TECHNOLOGY LIBERALLY
  • 10. CO-PLAINTIFFS/CODEFENDANTS • Can be effectively used during mediation -Can They Help Your Case? -Can They Hurt Your Case? -What About Cross Claims? -What about Non-Suits? • It is critical to understand party alignment prior to negotiations
  • 11. Case Specific Negotiation • Appropriate use of Mediator • Business solutions • Playing portions of Jury Focus groups in mediation • Contingent settlements • High low agreements
  • 12. Closing the Mediation • Length of Mediation • Should you agree to reconvene the mediation • A Plaintiff should never leave the mediation first • A Plaintiff should always understand whether it is a final offer
  • 13. The Art of Selling a Horse Whether you are in a HIGH STAKE MEDIATION or LOW STAKE MEDIATION BE THE COYOTE AND THE SHEEP DOG
  • 14. END