This document provides guidance on preparing for and participating in mediation to resolve legal disputes. It outlines key steps like analyzing the strengths and weaknesses of one's case, understanding the client's interests and alternatives to settlement, researching the mediator, and preparing a mediation statement covering the factual and legal issues. The document stresses communicating openly with the client, considering the full costs of resolving or not resolving the dispute, and getting any settlement agreement in writing.

1. Mediation and Settlement Jason Wright Roberts Kaplan LLP March 4, 2010

2. Getting Ready! Prepare using SWAP-LION: Strengths – What are your cases strengths? Factually and legally. Weaknesses – What are your cases weaknesses? Factually and legally. Alternatives – What happens if we don’t resolve this dispute? Arbitration, trial, etc. Perspectives - What is driving this controversy for your client and their client? Moral vindication v. money. List of Interests – your client, their client, lawyers, mutual? Options – what are your options for resolution? – lump sum, structured, offset, etc. Negotiation – tie your settlement proposals to legitimate objective standards and facts that the mediator, your client, and the other side can understand.

3. Talk with Your Client 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. Get FULL authority and confirm it in writing! Discuss SWAP-LION with them in detail to set out all of the potential outcomes (good, bad, and ugly). Be ready to discuss all the aspects of cost.

4. The REAL Cost Analysis Probability of Prevailing for each side. Potential verdict ranges. Time and cost to prepare for mediation, arbitration, trial. Length of mediation, arbitration, trial. Appeal rights or loss of appeal rights. Time value of money. Opportunity costs, disruption of business, and life.

5. Do Your Homework! Find out about your mediator. 1) To decide if you want to use them; and 2) To prepare your case for mediation. How? 1) Ask other attorneys in your group, firm, regional offices (if mediation out of state). 2) Talk to other lawyers outside of your office that you trust. 2) Get online and look at their website - who were they in past life, how long mediating, areas of expertise as practitioner/mediator, cost, availability, list of cases, etc.

6. Mediator Motives Resolve your client’s dispute. But don’t forget: 1) Mediator is running a business to make money. 2) To make money the mediator needs clients. 3) Clients are both plaintiff lawyers and defense lawyers.

7. The Mediation Statement Initial Questions First Question - Is it confidential or not? Does the mediator have something he/she can give you to let you know what they expect in your statement? When is it due to the mediator/opposing counsel? Does the mediator require attendance in person of a representative with authority to settle from both sides? What is the mediation cancellation policy?

8. What Every Mediation Statement Should Have Procedural history. Factual overview. Identification of the key factual and legal issues. Identification of your client’s factual and legal strengths. Identification of opposing counsel’s client’s factual and legal strengths with a response to those arguments. Settlement history. Your view of past and current barriers to settlement. Copies of key documents and pleadings.

9. Listen to Your Client! Resolution through mediation is your client’s decision. 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.

10. The Settlement Agreement Never walk out of a mediation without a statement of understanding or draft terms of settlement. Make sure your client understands and agrees with the settlement at the mediation before she leaves. 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.

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: jwright@robertskaplan.com