This document discusses mediation from the perspectives of both a lawyer and mediator. It describes mediation as a process of assisted negotiation where a neutral mediator helps parties reach an agreement. The document outlines when mediation is appropriate, the mediation process, how lawyers and mediators should prepare and participate, and the objectives and techniques a mediator uses to resolve disputes or lay the groundwork for future resolution. Even if a case does not settle at mediation, the mediator notes the process is not over and settlement is still possible through follow up, during trial, or on appeal to allow parties control over the outcome.

1. Mediation:
A View From Both Sides of the Aisle
Charles GordonCharles Gordon
[cgordon@jamsinternational.com][cgordon@jamsinternational.com]

2. Agenda
 Mediation: The BasicsMediation: The Basics
 When is Mediation Appropriate?When is Mediation Appropriate?
 The Mediation ProcessThe Mediation Process
 Preparing and Participating in MediationPreparing and Participating in Mediation
 The Respective Roles of Counsel and the MediatorThe Respective Roles of Counsel and the Mediator
 As Mediator, What Are My Objectives?As Mediator, What Are My Objectives?
 How Can These Objectives Be Attained?How Can These Objectives Be Attained?
 How Success Can be Achieved if the Case DoesHow Success Can be Achieved if the Case Does
Not Settle at the Mediation SessionNot Settle at the Mediation Session

3. Mediation: The Basics
 What is Mediation?What is Mediation?
• A process of assisted negotiation in which a
neutral person helps people reach agreement
 Forms of MediationForms of Mediation
• Voluntary Involuntary
• Evaluative Facilitative
 Role of the MediatorRole of the Mediator
1. Design a mediation process
2. Implement that process
3. Mold the process to forge agreement

4. When is Mediation Appropriate?
 At Any TimeAt Any Time
 Early MediationEarly Mediation
• Benefits
• Disadvantages
 Later MediationLater Mediation
• Benefits
• Disadvantages
 No MediationNo Mediation
• Benefits
• Disadvantages

5. Why is Mediation Appropriate
 To enable access to creative modes ofTo enable access to creative modes of
resolutionresolution
 To enable utilization of expert input as opposedTo enable utilization of expert input as opposed
to jury empathyto jury empathy
 To enable ongoing commercial relationsTo enable ongoing commercial relations
between the partiesbetween the parties
 To avoid or reduce litigation costTo avoid or reduce litigation cost
 To avoid the imposition of a bad resultTo avoid the imposition of a bad result
 To interpose someone to “blame” for acceptingTo interpose someone to “blame” for accepting
compromisecompromise

6. The Mediation Process
 Determined by the CaseDetermined by the Case
 Joint SessionJoint Session
 Breakout SessionsBreakout Sessions
• Merits Review
• Demand and Offer
• Negotiation
 Mediator InputMediator Input
• Case Assessment
• Resolution Proposal

7. Preparing and Participating in
Mediation
 My Two Vantage PointsMy Two Vantage Points
 As CounselAs Counsel
• 30 Years in Private Practice
• Trial Lawyer with Substantial Mediation
Experience
 As MediatorAs Mediator
• Now with JAMS and JAMS International
(jams.com and jamsinternational.com)
• Specializing in Commercial Cases with
Insurance Dimension

8. As Counsel, What Did I Desire
From a Mediator?
 Detailed PreparationDetailed Preparation
 An Understanding of the Case Subject MatterAn Understanding of the Case Subject Matter
 The Ability to Gather Information from theThe Ability to Gather Information from the
AdversaryAdversary
 CreativityCreativity
 An Objective Case AssessmentAn Objective Case Assessment
 Effective Communication with the ClientEffective Communication with the Client
 The Ability to Close the DealThe Ability to Close the Deal

9. As Mediator, What Do I Look
for From the Parties?
 A Clear, Concise Statement of PositionA Clear, Concise Statement of Position
• Hyperbole and Aggression are not helpful
 A Setting of ExpectationsA Setting of Expectations
• What is the posture of the dispute?
• What led the parties to mediation?
 What the Parties Aim to Achieve from theWhat the Parties Aim to Achieve from the
Mediation SessionMediation Session
• An independent view?
• A foundation for resolution?

10. Questions I Had as Counsel
 What Would Be Most Helpful to the Mediator?What Would Be Most Helpful to the Mediator?
 Do I Argue My Case as I Would in Court?Do I Argue My Case as I Would in Court?
 How Best Do I Send Signals?How Best Do I Send Signals?
 Do I Script My Negotiation Moves in Advance?Do I Script My Negotiation Moves in Advance?
 Does it Help to Walk Out if it Looks LikeDoes it Help to Walk Out if it Looks Like
Progress is Doubtful?Progress is Doubtful?

11. Answering the Questions As
Mediator
 What is Most Helpful to the Mediator?What is Most Helpful to the Mediator?
• A Candid Position Appraisal Supported by
Documentary and Testimonial Evidence
 Do I Argue My Case as I Would in Court?Do I Argue My Case as I Would in Court?
• Yes, until the Mediator seeks to engage in a
more objective dialogue
 How Best Do I Send Signals?How Best Do I Send Signals?
• Firmly and directly

12. Answering the Questions
 Do I Script My Negotiation Moves in Advance?Do I Script My Negotiation Moves in Advance?
• Yes. This displays fortitude and foresight.
 Does it Help to Walk Out if it Looks LikeDoes it Help to Walk Out if it Looks Like
Progress is Doubtful?Progress is Doubtful?
• Rarely. This forecloses the ability to obtain all
potentially available information from the
mediation process.

13. As Mediator, What Are My
Objectives?
 Ideally, to resolve the disputeIdeally, to resolve the dispute
 To provide an independent view of the relativeTo provide an independent view of the relative
strengths and weaknesses of each partystrengths and weaknesses of each party
 To assist the parties in exploring the possibilityTo assist the parties in exploring the possibility
of creative solutionsof creative solutions
 To assist the parties in translating the relativeTo assist the parties in translating the relative
position strengths into dollars and centsposition strengths into dollars and cents

14. How Can These Objectives
Be Attained?
 Be fairBe fair
 Be realisticBe realistic
 Inject humor when appropriateInject humor when appropriate
 Listen carefully to what is being said andListen carefully to what is being said and
impliedimplied
 Gain the trust of the partiesGain the trust of the parties
 Enable client representatives to understand theEnable client representatives to understand the
importance of controlling risk and mitigatingimportance of controlling risk and mitigating
potential adverse litigation outcomespotential adverse litigation outcomes

15. How to Achieve Success if the
Case Does Not Settle at the
Mediation Session
 The Mediation Process Does Not End at theThe Mediation Process Does Not End at the
Conclusion of the Mediation SessionConclusion of the Mediation Session
• Subsequent Follow-Up by the Mediator
• Concepts Sometimes Need Time to Sink In
• “From Frustration Comes Opportunity”
 Mediator Can Even be Accessed During TrialMediator Can Even be Accessed During Trial
 Mediator Can Even be Accessed During AppealMediator Can Even be Accessed During Appeal
 Settlement Enables Control over the Result; aSettlement Enables Control over the Result; a
Trial Verdict Does NotTrial Verdict Does Not

16. Questions