HOW ONE GETS THROUGH A MEDIATION MEETING OR Getting Them To Go Away

MEDIATION LIFE CYCLE 1) Identify “Failures to Perform” based on Contract Provisions * Key: Documentation * 2) Organize Evidence for Each Failure to Perform *Time Line * 3) Plan Mediation Meeting * Pro & Con * 4) Rehearse the Meeting * Takes Forever * 5) Mediation Presentation: Offense and Defense * Tough Day * 6) The Decision * The Legal View *

IDENTIFY “FAILURES TO PERFORM” BASED ON CONTRACT PROVISIONS Keys:- Complete/Official Documentation of Full Life Cycle Quality Contract that INCLUDES Vendor Proposal & Commitments - Include Both Contract Provisions and Proposal Promises

ORGANIZE EVIDENCE BY EACH FAILURE TO PERFORM FOR EACH CONTRACT PROVISION TIME LINE APPROACH MATCHES NORMAL TRIAL PROCEDURE Keys:- Overall Time Line Showing Phases and Tragedies - Detailed Time Lines including ALL Failures to Perform TYPICAL CLAIMS AGAINST VENDOR - Inadequate Project Management Work Plan, Scope Management, Progress Reporting, Staffing, Change Management - Lack of Performance in terms of Following: Statement of Work, Methodologies - Project Delays caused by: Staffing, Deliverables Quality TYPICAL CLAIMS AGAINST YOU - Expansion (Creep) of Scope - Increase in Stakeholders - Resolution of Policy/Procedure Differences

PLAN THE MEDIATION MEETING ANALYZE BOTH SIDES: The GOOD & The BAD Key:- Knowledgeable DEVILS ADVOCATE(S) - Use Project People as well as Lawyers OUTLINE OF RECENT MEDIATION MEETING Objectives of Mediation Summary of Dispute Both Your Views & Vendors Claims Against Vendor (Each Reason for Vendor Default) - Project Management Problems - Lack of Performance Problems - Project Delays - Cost Basis of Claims  Response to Vendors Positions & Claims - Scope Issues - Project Delays By Users - Cost Claims By Vendor

REHEARSE THE MEETING Takes Forever * Use Flip Charts Rehearse your Technical People Until They Say the ‘Right Thing’ Takes Hours for Each Person Have a Full Script for Lawyers to Review A Two Inch Binder MEDIATION MEETING: OFFENSE AND DEFENSE Tough Day * Some Suggestions: Use Your Devils Advocate as MC Use ALL your Relevant Technical & Managerial Personnel Speak Only to The Mediator Your Lawyers Really Don’t Have to Present

THE DECISION * The Legal View * A TYPICAL OPINION Many of your claims appear to be “Failures to Perform”, but each is NOT of itself sufficient to VOID THE CONTRACT FOR VENDOR DEFAULT. Perhaps a JURY OR ARBITRATOR MIGHT consider the SUM of the Failures Sufficient to VOID THE CONTRACT FOR VENDOR DEFAULT

SO Give Them Some Money to GO AWAY OR Go To Trial; Which Will Probably Cost You More