Getting the most out of mediation for your client Ian Hanger

A bit of philosophy What does your client really want??? To eliminate a rival business To hurt the other party To be vindicated To pay off a mortgage An ongoing relationship A new contract To be bought out An apology Money To repair the relationship Not warm and fuzzy Insurers

What does the mediation offer you the advocate? A chance to hear the other party’s best case A chance to assess the opposing client A chance to get to the real issues that may not necessarily be in the pleadings A chance to amend your pleadings if the mediation is unsuccessful The thanks of a grateful client

Preparation Like a directions hearing Face to face or telephone Determine Dates Venue Fees Who attends experts, insurers, representatives Who available by phone Decision makers present? Mediation agreement Discuss any concerns that any lawyer sees the client may have at the mediation The background to the dispute; Mediator gets some clues about personalities of parties and solicitor Get the right people at the table—experts, insurers, which rep of client, teams?

Preparation (2) Documents for the mediator Position papers, pleadings ,issues, authorities Are there insurer indemnity issues? Any insolvency issues? Previous offers? Arrange an appointment for your client with the mediator Documents: Keep it brief Pleadings, position statements, list of issues, cases I should look at

Client Preparation Explain the mediation process Benefits are costs, delay, stress, risk Explain and discuss the difference between rights and interests How long to finish the litigation process if we don’t reach a resolution How much have we spent so far How much will we spend To finish a trial To finish the appeal process If we win how much of our costs do we recover Client is at its centre

Client Preparation (2) What is the dollar value of stress on self and family; opportunity cost; possible loss of reputation if relevant Can we afford this litigation—stat dec if we can’t Can the other party afford this litigation If not you will need to get a stat dec of assets and liabilities from them Settlement based on that stat dec

Client Preparation (3) Discuss prospects of success at trial Discuss consequences of loss at trial Publicity, reputation, taxation matters Discuss BATNA/WATNA Determine walk away figure but keep mind open Reality test what client wants and what s/he might get out of the mediation Client must consider the range of outcomes that they would like to achieve and the lawyer must reality test that range. A mediated result generally involves compromise

Client Preparation (4) Consider who will deliver the opening statement –client or advisers Discuss with client what role client will play in the mediation Who makes the first offer? What will our first offer be? Discuss rules re formal offers in event of unsuccessful mediation Client is the most important person in the room Must be given opportunity to tell his or her story. The lawyers role is to coach the client in the process and ask questions to elicit the story

Client Preparation (5) Consider ways of settling other than payment of money Prepare client for mediator’s deadlock breaker mediator may want to see clients without lawyers present Mediator may suggest a figure The prime role of lawyer is to assist the client; not take over. --prime role is risk/benefit analysis. Assist the mediator –particularly with the difficult client. Draft settlement agreement; The experts should be there to assist the client and the lawyers and the mediators.

Your conduct at the mediation Be an amateur psychologist Work out who it is you really need to convince Watch the body language Consider the personalities opposite you

Listen It's not about the nail

Your conduct at the mediation(2) Courtesy at all times Keep it simple Generously concede your weak points for the purposes of the mediation The mediation is the only chance you get before trial to talk to the other client You must convince the other client by a process of reasoning that he/she understands that the outcome of a case in court could be a disaster.

Your conduct at the mediation(3) Talk to the person whom you conclude is the real decision maker; NOT the mediator

You must negotiate Monty Python Haggle Sketch

The negotiation dance Offers Zone Of Possible Agreement Defendant opening offer Plaintiff opening offer ZOPA It is more convincing if you can justify each offer with some reasoning Anchoring and neuroscience

If not resolved Should we amend pleadings? Limit the issues Agree on a way forward Ascertain the other party’s bottom/top line Agree on independent expert’s report? Should we adjourn this mediation to a later date and if so are the proceedings stayed by consent or not Be aware that a mediation that does not resolve the dispute can resolve parts of it and can provide other benefits

The Unsuccessful Mediation?? Cost of the actual day (L) You have thoroughly prepared (G) You understand the other point of view (G) Lawyers assess the other party (G) Experts are assessed (G) Ian Hanger

The Unsuccessful Mediation?? (2) Liars can repair case (L) Pleadings can be amended (G) You know the BATNA and WATNA (G) You know what it will take to settle (G) Narrow the issues (G) Alert other party to a new line of inquiry (L) Ian Hanger