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Mediation And Settlement


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Mediation And Settlement

  1. 1. Mediation and Settlement Jason Wright Roberts Kaplan LLP March 4, 2010
  2. 2. Getting Ready! <ul><li>Prepare using SWAP-LION: </li></ul><ul><ul><li>Strengths – What are your cases strengths? Factually and legally. </li></ul></ul><ul><ul><li>Weaknesses – What are your cases weaknesses? Factually and legally. </li></ul></ul><ul><ul><li>Alternatives – What happens if we don’t resolve this dispute? Arbitration, trial, etc. </li></ul></ul><ul><ul><li>Perspectives - What is driving this controversy for your client and their client? Moral vindication v. money. </li></ul></ul><ul><ul><li>List of Interests – your client, their client, lawyers, mutual? </li></ul></ul><ul><ul><li>Options – what are your options for resolution? – lump sum, structured, offset, etc. </li></ul></ul><ul><ul><li>Negotiation – tie your settlement proposals to legitimate objective standards and facts that the mediator, your client, and the other side can understand. </li></ul></ul>
  3. 3. Talk with Your Client <ul><li>Talk with the person that has actual authority to settle the case and make sure they can participate in the settlement and/or mediation process. </li></ul><ul><li>Get FULL authority and confirm it in writing! </li></ul><ul><li>Discuss SWAP-LION with them in detail to set out all of the potential outcomes (good, bad, and ugly). </li></ul><ul><li>Be ready to discuss all the aspects of cost. </li></ul>
  4. 4. The REAL Cost Analysis <ul><li>Probability of Prevailing for each side. </li></ul><ul><li>Potential verdict ranges. </li></ul><ul><li>Time and cost to prepare for mediation, arbitration, trial. </li></ul><ul><li>Length of mediation, arbitration, trial. </li></ul><ul><li>Appeal rights or loss of appeal rights. </li></ul><ul><li>Time value of money. </li></ul><ul><li>Opportunity costs, disruption of business, and life. </li></ul>
  5. 5. Do Your Homework! <ul><li>Find out about your mediator. </li></ul><ul><li>1) To decide if you want to use them; and </li></ul><ul><li>2) To prepare your case for mediation. </li></ul><ul><li>How? </li></ul><ul><li>1) Ask other attorneys in your group, firm, regional offices (if mediation out of state). </li></ul><ul><li>2) Talk to other lawyers outside of your office that you trust. </li></ul><ul><li>2) Get online and look at their website - </li></ul><ul><li>who were they in past life, how long mediating, areas of expertise as practitioner/mediator, cost, availability, list of cases, etc. </li></ul>
  6. 6. Mediator Motives <ul><li>Resolve your client’s dispute. </li></ul><ul><li>But don’t forget: </li></ul><ul><li>1) Mediator is running a business to make money. </li></ul><ul><li>2) To make money the mediator needs clients. </li></ul><ul><li>3) Clients are both plaintiff lawyers and defense lawyers. </li></ul>
  7. 7. The Mediation Statement Initial Questions <ul><li>First Question - Is it confidential or not? </li></ul><ul><li>Does the mediator have something he/she can give you to let you know what they expect in your statement? </li></ul><ul><li>When is it due to the mediator/opposing counsel? </li></ul><ul><li>Does the mediator require attendance in person of a representative with authority to settle from both sides? </li></ul><ul><li>What is the mediation cancellation policy? </li></ul>
  8. 8. What Every Mediation Statement Should Have <ul><li>Procedural history. </li></ul><ul><li>Factual overview. </li></ul><ul><li>Identification of the key factual and legal issues. </li></ul><ul><li>Identification of your client’s factual and legal strengths. </li></ul><ul><li>Identification of opposing counsel’s client’s factual and legal strengths with a response to those arguments. </li></ul><ul><li>Settlement history. </li></ul><ul><li>Your view of past and current barriers to settlement. </li></ul><ul><li>Copies of key documents and pleadings. </li></ul>
  9. 9. Listen to Your Client! <ul><li>Resolution through mediation is your client’s decision. </li></ul><ul><li>You as the lawyer are there to provide legal advice and counsel to help your client make the best decision possible for himself or his business. </li></ul>
  10. 10. The Settlement Agreement <ul><li>Never walk out of a mediation without a statement of understanding or draft terms of settlement. </li></ul><ul><li>Make sure your client understands and agrees with the settlement at the mediation before she leaves. </li></ul><ul><li>Do not rely upon a short form settlement from a mediator. Remember, only you are going to make sure your client’s interests are protected. </li></ul>
  11. 11. Mediation and Settlement Jason Wright Roberts Kaplan LLP 601 SW 2 nd Avenue Suite 1800 Portland, OR 97204 Phone 503-221-2217 E-mail: