Mediation – When to Use and How to Make It Effective June 20, 2012 Moderator:Rebecca A. Young Speakers: The Honorable Melanie A. Vaughn and Kelly M. Preteroti

How is Mediation Defined?  Mediation is a negotiation facilitated by a third-party neutral  Mediation means different things to different people  May be directive and evaluative or non-directive non-evaluative  Universally, mediation is an opportunity for your client to choose the outcome of his/her/its case

What are the different types of mediation?  Facilitative  Evaluative  Transformative  Hybrid

How does one end up in mediation?  Court-ordered  Federal vs. State  Private  Administrative  Early and often When to mediate?

What factors should be considered in determining whether and when to mediate?  Whether to mediate:  Do the parties need a decision of law?  Does a party require precedent for future cases?  What do clients want and what do they really need?  When to Mediate:  Consider what the value of the case is pre- discovery and post-discovery, pre-trial and post- trial  Identify your and your adversary’s best and worst case scenario if the case went to trial  Identify the risks of foregoing mediation

 Mediation is not a sign of weakness  Litigation is not cheap, especially under the “American Rule”  Allow your client to get a sense of the costs of litigation  The elephant in the room – financial, ethical and strategic considerations How do you encourage your client to participate in mediation? How do you encourage opposing counsel (or co-counsel) to participate in mediation?

How do you identify the appropriate mediator?  Think about what you want from the mediator and why  Consider:  The mediator’s prior experience as a lawyer or judge  The influence the mediator will have on opposing counsel, the opposing party and your client  The mediator’s style  Facilitative, authoritative, or evaluative  Consider the mediator’s flexibility and process skills  Interview your mediator, if you can

How to mentally prepare your client for mediation?  Communicate with your client and manage your client’s expectations  Mediation may mean compromise, but can also mean that the parties get most of what they need (perhaps not everything that they want)  Discuss creative settlement options  Are the non-monetary options or sweeteners?  Discuss the risks with proceeding through discovery and/or trial  If your risks are high, your goals in mediation may need to be further from your best case scenario

 Understand your client’s high/low settlement value of the case  Discuss the role your client will play in the mediation  Determine what are your client’s real, underlying interests How to mentally prepare your client for mediation?

How to physically prepare your client for mediation?  Discuss whether your client is comfortable sitting and communicating with the opposing party  Consider whether caucusing would provide a more/less effective mediation environment  Be flexible and keep your options open and encourage your client to so

How to prepare your case for mediation?  Plan, prepare and strategize  Plan how you want the mediator to perceive you, your case and your client  Prepare a written Confidential Mediation Statement  Strategize about creative settlement options  Why “pick up the file and go” does your client a disservice

What should be included in the Confidential Mediation Statement?  Statement of the case  Factual issues  Legal issues  Strengths and weaknesses of your case  Prior settlement negotiations  What a mediator looks for in the Confidential Mediation Statement

What to expect and watch out for during the mediation?  Expect to wear different hats  Advocate, therapist, voice of reason, devil’s advocate  Mediation is a great venue to resolve factual misconceptions  Talk your client “off the ledge”  Consider how your proposal will be perceived by the other party  Work with and use a mediator to your best advantage, don’t fight a settlement

How to avoid common mediation pitfalls?  Make an opening remark NOT an opening statement  Be creative in arriving at a settlement  Although a global settlement is ideal, consider whether a partial settlement of some of the issues makes sense  If you reach an agreement get the basics down, in writing, signed by the parties  Set deadlines for completing the final documents  Make sure the mediator acts as the “case manager” at the end and that the lawyers and clients go over every agreed upon point