Mediation

Why Mediate? You have to. Can you resolve your case before mediation? To settle your case. Settlement Why are we so bad at it? Mediation as a crutch. When to settle. Eve of trial; Courthouse steps? Not anymore.

You have to.

Can you resolve your case before mediation?

To settle your case.

Settlement

Why are we so bad at it? Mediation as a crutch.

When to settle.

Eve of trial; Courthouse steps? Not anymore.

When to Settle Three times to settle: After critical deposition. Hearing on summary judgments. At mediation. Benefits: 80% of costs consumed in discovery. Won’t your client come back if you avoid those costs?

Three times to settle:

After critical deposition.

Hearing on summary judgments.

At mediation.

Benefits:

80% of costs consumed in discovery.

Won’t your client come back if you avoid those costs?

Is mediation worth it? Evidence of Attorney Boredom Half day mediation Phone mediation No preparation (client or mediator) Wrong client representative

Evidence of Attorney Boredom

Half day mediation

Phone mediation

No preparation (client or mediator)

Wrong client representative

Negotiation Techniques Interests v. Position Getting to Yes: Negotiating Agreement Without Giving In by Roger Fisher Can both sides win? Story of children fighting. Stated Position: Interest: Be creative with your interests. There is more than one interest.

Interests v. Position

Getting to Yes: Negotiating Agreement Without Giving In by Roger Fisher

Can both sides win? Story of children fighting.

Stated Position:

Interest:

Be creative with your interests. There is more than one interest.

Negotiation Techniques. Emotions: Don’t argue, be competitive. Persuade. Listen. Acknowledge. Empathize. Focus on objective criteria. Do some research. Look at jury verdict reports.

Emotions:

Don’t argue, be competitive.

Persuade.

Listen. Acknowledge. Empathize.

Focus on objective criteria.

Do some research. Look at jury verdict reports.

Negotiation Techniques. Create Doubt. When? Joint Session. Pros: Opposing counsel’s client hears it. Cons: Advocate too much and you may polarize the parties. Thoughts on opening statements? Unique opportunity. The only time you get to talk to opposing counsel’s client. Via Mediator. No such thing as ex parte discussions

Create Doubt. When?

Joint Session.

Pros: Opposing counsel’s client hears it.

Cons: Advocate too much and you may polarize the parties.

Thoughts on opening statements?

Unique opportunity. The only time you get to talk to opposing counsel’s client.

Via Mediator.

No such thing as ex parte discussions

Types of Negotiation Distributive Bargaining Fixed pie – zero sum game. Split it up Win-lose.

Distributive Bargaining

Fixed pie – zero sum game.

Split it up

Win-lose.

Types of Negotiation Positional Bargaining Guilty? One side starts with a very high demand. Other side responds with a very low offer. Trying to get the best ‘position.’ Characteristics: Distrust. Bluffing. Incremental moves, commensurate with opposing side’s moves. Downsides: Polarizes the parties. Damages relationships. Loss of credibility.

Positional Bargaining

Guilty? One side starts with a very high demand. Other side responds with a very low offer. Trying to get the best ‘position.’

Characteristics: Distrust. Bluffing. Incremental moves, commensurate with opposing side’s moves.

Downsides: Polarizes the parties. Damages relationships. Loss of credibility.

Types of Negotiation Integrative Bargaining Both sides win. Only works when you want different things. Orange example. Interest-Based or Principled Bargaining Make the pie bigger. Win-win. How to be creative? Think of what is worth a lot to the other side, but has a low cost to your client.

Integrative Bargaining

Both sides win.

Only works when you want different things. Orange example.

Interest-Based or Principled Bargaining

Make the pie bigger. Win-win.

How to be creative? Think of what is worth a lot to the other side, but has a low cost to your client.

Types of Negotiation Competitive vs. Cooperative (Problem Solving) Negotiations

Competitive vs. Cooperative (Problem Solving) Negotiations

Presentation. Preparation. For the mediator: Create a case summary at the beginning of a binder, with each factual and legal contention referenced to a key document or depositions excerpt or case. For the joint session: Video Visual aids Don’t look unprofessional compared to your opposition

Preparation.

For the mediator:

Create a case summary at the beginning of a binder, with each factual and legal contention referenced to a key document or depositions excerpt or case.

For the joint session:

Video

Visual aids

Don’t look unprofessional compared to your opposition

Popular Mediators

Enforceability: Buckley v. Shealy, 635 S.E.2d 76 (S.C. 2006). On rehearing, overturning previous ruling that mediated divorce settlement which was signed almost 10 years prior, but never filed with the court, was unenforceable. Mediation agreement enforced. Caballero v. Wikse , 92 P.3d 1076 (Idaho 2004). Affirming enforcement of mediated settlement signed by plaintiff’s attorney when plaintiff left mediation early, but knowing the ground rules required someone with settlement authority be presents for the entire mediation. There was substantial evidence about attorney’s authority.

Buckley v. Shealy, 635 S.E.2d 76 (S.C. 2006). On rehearing, overturning previous ruling that mediated divorce settlement which was signed almost 10 years prior, but never filed with the court, was unenforceable. Mediation agreement enforced.

Caballero v. Wikse , 92 P.3d 1076 (Idaho 2004). Affirming enforcement of mediated settlement signed by plaintiff’s attorney when plaintiff left mediation early, but knowing the ground rules required someone with settlement authority be presents for the entire mediation. There was substantial evidence about attorney’s authority.

Enforceability: Catamount Slate Prods., Inc. v. Sheldon, 845 A.2d 324 (Vt. 2003). Court refused to enforce the oral mediated settlement which specifically contemplated the agreement would be reduced to writing. Ledbetter v. Ledbetter, 163 S.W.3d 681 (Tenn. 2005). Refusing to enforce mediated settlement orally dictated by mediator and affirmed by parties and counsel at mediation; it was later repudiated. It was never reduced to writing and signed.

Catamount Slate Prods., Inc. v. Sheldon, 845 A.2d 324 (Vt. 2003). Court refused to enforce the oral mediated settlement which specifically contemplated the agreement would be reduced to writing.

Ledbetter v. Ledbetter, 163 S.W.3d 681 (Tenn. 2005). Refusing to enforce mediated settlement orally dictated by mediator and affirmed by parties and counsel at mediation; it was later repudiated. It was never reduced to writing and signed.

Confidentiality: Holmes v. Concord Homes, LTD, 115 S.W.3d 310 (Tex. App.—2003). No error in allowing evidence at trial regarding settlement negotiations at mediation because no objection timely made.

Holmes v. Concord Homes, LTD, 115 S.W.3d 310 (Tex. App.—2003). No error in allowing evidence at trial regarding settlement negotiations at mediation because no objection timely made.

Checklist: Select a qualified mediator at a neutral site. No conflicts. Adequate time. Submit pre-mediation briefing, current pleadings. Confer with the mediator. Prepare your client. Explain the process, the mediator’s role, the client’s participation, possibility of questions and dialogue. Ensure your representative has authority to settle the case. At mediation: Bring submission, documents, copies of key cases.

Select a qualified mediator at a neutral site. No conflicts. Adequate time.

Submit pre-mediation briefing, current pleadings. Confer with the mediator.

Prepare your client. Explain the process, the mediator’s role, the client’s participation, possibility of questions and dialogue. Ensure your representative has authority to settle the case.

At mediation: Bring submission, documents, copies of key cases.