1. Timing is Everything
2. Select the Right Process
3. Select the Right Mediator
4. Prepare for Mediation
5. Prepare Your Client
6. Prepare the Mediation Statement
7. Strategies for the Joint Session
8. Working with the Mediator
1. Add fuel to the dispute. This includes encouraging the client to litigate by focusing only on the strengths of the case, denigrating the other side, over-identifying with the client and/or the conflict, failing to provide a balanced view, and failing to caution client as to the risks and costs of litigation.
2. Prevent your client from talking with the mediator and/or the other side.
3. Block or rush face-to-face discussion and/or emotional expression between the parties.
4. Use hardball negotiation tactics including taking extreme and rigid positions, imposing arbitrary preconditions to settlement negotiations, etc.
5. Focus excessively on future litigation such as discovery, motions, etc.
6. Attempt to manipulate or mislead the mediator as to your clients’ true position and convictions.
1. Encourage the parties to talk about what’s most important to them, including how they feel about the situation and what they need. Let them say what’s on their minds. Be patient.
2. Ask your client to see the other side and accept some responsibility for the problem.
3. Address your client’s desire for revenge or retribution. Seek the mediator’s help with this if necessary.
4. Make sure your client knows the weaknesses of their case and the risks of proceeding to trial.
5. Make sure your clients know how much it will cost them to proceed to trial.
6. Use the mediator as a collaborator. Enlist the mediator’s help in achieving a settlement that will meet your client’s real needs.
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