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  • T

    1. 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. 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. 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. 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. 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. 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. 7. GAME TIME (Mediation Tactics) Opening Statement Tactics During Mediation Closing the Mediation
    8. 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. 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. 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. 11. Case Specific Negotiation • Appropriate use of Mediator • Business solutions • Playing portions of Jury Focus groups in mediation • Contingent settlements • High low agreements
    12. 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. 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. 14. END

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