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Preparing for Mediation: Starting a File

Civil Negotiation and Mediation by Nancy Hudgins

We’ve all spent weeks on trial preparation. If mediation (or other ADR) is going to resolve most cases (only 98% to 99.5% of cases go to trial in some studies), we should consider matching the disciplined approach we take to preparing for trial to mediation preparation.

As a first step, take some time to think about your last mediation. Make a list of what worked and what didn’t work. Consider these questions:

1. Did I select the right mediator for the case?
Cases are different. Mediators are different. Decide which mediator attribute is most likely to enhance client satisfaction and settle your case, e.g., subject matter competency v. creativity v. the usefulness of your client’s or the other side’s client’s feeling heard and respected.

2. Did I evaluate my BATNA (Best Alternative to a Negotiated Agreement)?
Did I evaluate the other side’s BATNA?

3. Did I accurately calculate the Zone of Possible Agreement? If not, why not?

4. Did I take full advantage of the joint session?
This is your opportunity to hear directly from and speak directly to the client on the other side.

5. Did I have an effective game plan?
Deciding whether to make the first offer, where to go next, and where you want to end up are as important as trying to analyze where the other side’s ballpark is. Bill Walsh, the legendary 49’ers coach, scripted the first 25 plays. Did you script your negotiation moves ahead of time?

6. Was I surprised by the other side’s posturing, facts or legal arguments, or was I ready for them?

7. Did I work to create value?

8. Given the negotiations and the outcome, was my client adequately prepared? Satisfied?

I recommend starting a file and writing this information down. Keep track of each mediation. What worked? What didn’t? Then review the file prior as part of your mediation preparation for your next mediation.

                        author

Nancy Hudgins

Nancy Hudgins, a San Francisco mediator and lawyer, began specializing in civil litigation in the 1970's. She has represented both plaintiffs and defendants, chiefly in personal injury, medical malpractice, elder abuse and product liability lawsuits, but also in a wide variety of complex litigation, including civil rights, fraud and class… MORE >

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