Mediation: A View from Both Sides of the Aisle A presentation to Insuralex June 27, 2013 By: Lawrence W. Pollack

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

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

When is Mediation Appropriate?  At Any Time  Early Mediation Benefits Disadvantages  Later Mediation Benefits Disadvantages  No Mediation Benefits Disadvantages

Why is Mediation Appropriate  To promote a resolution with commercial benefit  To enable access to creative modes of resolution  To enable utilization of expert input as opposed to jury empathy  To enable ongoing commercial relations between the parties  To avoid or reduce litigation cost  To avoid the imposition of a bad result  To interpose someone to “blame” for accepting compromise

The Mediation Process  Determined by the Case  Joint Session  Breakout Sessions Merits Review Demand and Offer Negotiation  Mediator Input Case Assessment Resolution Proposal (at the right time)

Preparing and Participating in Mediation  My Two Vantage Points  As Counsel 28 Years in Private Practice Trial Lawyer with Substantial Mediation Experience  As Mediator Now with JAMS Specializing in Commercial Cases with Insurance Dimension

As Counsel, What Did I Desire From a Mediator?  Detailed Preparation  An Understanding of the Case Subject Matter  The Ability to Gather Information from the Adversary  An Objective Case Assessment  Creativity  Effective Communication with the Client  The Ability to Close the Deal

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

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

Answering the Questions As 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? Yes, until the Mediator seeks to engage in a more objective dialogue  How Best Do I Send Signals? Firmly and directly

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

As Mediator, What Are My Objectives?  Ideally, to resolve the dispute  To develop an independent view of the relative strengths and weaknesses of each party  To express that view tactfully in order to promote a basis for resolution  To assist the parties in translating the relative position strengths into dollars and cents  To work with the parties to explore the possibility of creative solutions

How Can These Objectives Be Attained?  Listen carefully to what is being said and implied  Be fair  Be realistic  Inject humor when appropriate  Gain the trust of the parties  Enable client representatives to understand the importance of controlling risk and mitigating potential adverse litigation outcomes

How to Achieve Success if the Case Does Not Settle at the Mediation Session  The Mediation Process Does Not End at the Conclusion 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 Trial  Mediator Can Even be Accessed During Appeal  Settlement Enables Control over the Result; a Trial Verdict Does Not

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