Mediation Tips - mediation tip archives

Mediation Tip Archives

Mediation Briefs - Part I :
When you prepare a brief for mediation remember it is not a trial brief. The mediation brief is different. Use a simple statement of the facts for the mediator. For example, "this is a partnership dispute between partners who own three commercial properties." A three page discussion of when the partnership was formed, who is who, when each of the properties was purchased and the legal description of the each property is probably not necessary for the mediator to understand the conflict. Use descriptive words. For example, seller – buyer, builder – owner, instead of the parties names.

Mediation Briefs - Part II :

As mentioned in last month's tip, remember to prepare a mediation brief, not a trial brief. Use the mediation brief as a place to list discussion points instead of making arguments. You may need to cite some law, but keep it straight forward. The mediator is looking points to discuss with the participants. It may be good to just keep it simple – “liability is an issue in this case because (a). . . (b) . . . and (c) . . ..”

Preparing your Client for Mediation:

Do you prepare your client for his/her deposition? Do you spend more that a few minutes discussing what will happen in the deposition? Do you review tactics for the deposition? If your answers are yes, Yes and YES!; then talk with your client about the mediation. Be sure you enter the mediation with your client prepared not to let the last, best and final offer pass if it is a good result for your client and elect instead to proceed with the expense, uncertainty and anxiety of trial. If you do prepare your client for the mediation you will achieve much better results and will have happier clients.

Creative Solutions:

In preparing for mediation it is a good idea to develop alternative solutions or outcomes for your case. Creativity is king. A good mediator will instinctively find creative solutions. Since you, as the lawyer, have been dealing with the controversy, you are best able to prime the pump. You can read the case law and predict what the court will or will not do, but in a mediation all the boundaries for resolution are swept aside. The slate is clean and open to fresh solutions.