Preparing for Mediation

Tips for Counsel: Prepare your clients well in advance of the mediation, to allow your discussion to percolate and sink in.

Meet a minimum of one week before the date to cover these topics:

1. How the mediation process works;

2. The role of the mediator;

3. The need for compromise;

4. The realistic strengths and weaknesses of your case;

5. The likely range of settlement offers;

6. The vagaries of litigation and the fact that the outcome of a trial is highly unpredictable;

7. The emotional impact;

8. The trial process:

• The jury will be no more experienced than a coffee shop crowd;

• The judge may not be an expert in the subject matter of the litigation;

• It will be significantly more emotionally taxing than a mediation;

• All privacy will be lost. For example, if the client is underreporting taxes, abusing drugs or alcohol, the other side is likely to find out about it and will try to introduce this as evidence in the public trial.

Every trial has a winner and a loser, a fact that seems lost on some lawyers and clients. For that key reason alone, mediated settlements are more productive and satisfying in the vast majority of cases.