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Bar Association of San Francisco Member Benefits: Publications

Are You and Your Client Effectively Prepared for Mediation?
Avoiding Costly Mistakes in Mediation/Part 3

 

By Nancy Neal Yeend and Carol Webster Millie and Mike Kasperzak, Silicon Valley Mediation Group

 

Editor’s Note: This is the last in a series of three articles that address how attorneys can avoid costly mistakes even before a mediation begins. The series began with the topic of timing, followed by how to select the best, case-appropriate mediator. This final article explains how to effectively prepare yourself and your client before a mediation begins.

It is not uncommon for attorneys and clients to arrive unprepared at court-ordered mediations. Lack of preparation has ethical and legal consequences, so to avoid them try the following: conduct a 360-degree review of your case and prepare your client.

“Walking around” your case does not take a lot of time, and it may provide valuable insight. Be sure to look at your case not only as counsel for your client, but also scrutinize the case as if you were counsel for the other side.

To conduct your assessment:

  • list the undisputed and disputed facts;
  • identify all known issues and topics for discussion;
  • identify the strengths and weaknesses of your case; and,
  • identify the decision-making criteria you will use.

Decision-making criteria are those factors that influence your client’s willingness to accept or reject an offer. For example, attorneys use the law as their primary criteria. Clients may use time: they will accept one offer if it happens today, but will reject that same offer if they must wait six months. “Economics are an important criterion: Is there enough money to pay the medical bills and the attorney’s fees?” Tax implications, industry customs or standards, finality, confidentiality, prevention, cost containment, saving face, etc., are other commonly used decision-making criteria. Be sure to distinguish your criteria from those of your client.

Including clients in the mediation process has more benefits than drawbacks. Once your clients understand the four corners of the conflict, they are less likely to second-guess your strategy and more likely to honor settlement terms. As in deposition, mediation provides an opportunity to observe demeanor, and your articulate client may motivate the other side to settle.

An apology is also possible in the more intimate mediation setting. A personalized description of injuries suffered by your client may serve as a catharsis, and also may offer new insights. Of course, if you have a legitimate concern about what your client may do or say in joint sessions, then client participation only during caucus periods may be appropriate. This will leave your client’s potentially disruptive language in the caucus room.

In conclusion, you can guide your client to a mediated settlement that includes terms more beneficial than those produced in litigation. To improve your settlement rate before entering the mediation room, scrutinize the timing of the process, select the most case-appropriate mediator, and effectively prepare.


 

Attend the May 12 CLE seminar: Using Mediation Effectively: Avoiding Costly Mistakes


 


Nancy Neal Yeend has been a civil mediator for 30 years and is a faculty member at the National Judicial College. Carol Webster Millie, has been an attorney/mediator for twenty years and specializes in early business conflict resolution. Mike Kasperzak is a former civil litigator, and has over 20 years of mediation experience. All three are founding members of Silicon Valley Mediation Group.

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