1. Getting the most out of mediation for your client
Ian Hanger

2. 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

3. 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

4. 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?

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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.

11. 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

12. Listen
It's not about the nail

13. 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.

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

15. You must negotiate
Monty Python Haggle Sketch

16. 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

17. 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

18. 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

19. 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