ADR CORNER
ADR CORNER
Don ' t Do These Things Unless You Want to Settle
MARK GREENBERG
As attorneys , your role in mediation is pivotal to achieving a favorable outcome for your client . To facilitate a successful settlement , it ' s essential to provide comprehensive and accurate information to the mediator . This Mediation Summary Outline will guide you in providing the material to ensure a productive mediation , resulting in a more likely settlement for your client .
1 . Case Information :
• Case Name : Clearly identify the case being mediated .
• Trial Date : Specify the trial docket , and for state court if this is an actual trial order or estimated date from a case management order .
• Trial Venue : Indicate the location where the trial is set to take place .
• Judge : Mention the presiding judge overseeing the case .
• Jury or Non-Jury : State whether the trial is jury or bench .
2 . Type of Case :
• Describe the nature of the case , including legal issues and claims involved .
3 . Attorney ’ s Fees :
• Specify whether attorney ’ s fees are a significant concern in the case .
4 . Negotiation History :
• Most Recent Demand and Date : Share the most recent settlement demand and the date it was made .
• Most Recent Offer and Date : Provide the most recent settlement offer and the date it was extended .
5 . Case Summary :
• Present a concise overview of the case , including key facts , legal arguments , and the current status of litigation .
6 . Key Case Factors :
• Strengths : Highlight your client ’ s strongest arguments or evidence that favor their position .
• Weaknesses : Acknowledge any aspects of the case that might be challenging or unfavorable to your client .
• Opposing Side ' s Strengths : Identify the opposing party ' s most compelling arguments or evidence .
• Opposing Side ' s Weaknesses : Note any vulnerabilities or weaknesses in the opposing party ' s case .
7 . Client ’ s Settlement Objectives :
• Clearly state your client ' s goals for settlement , including desired outcomes beyond monetary compensation .
8 . Verdict Range :
• What is your client ’ s best day in court ?
• What is your client ’ s worst day in court ?
• What are the realistic range of verdicts ?
• Availability of Similar Case Verdicts : If applicable , share information on past verdicts for cases similar to yours .
9 . Discovery Status :
• Describe significant discovery completed and highlight any pending or outstanding discovery .
10 . Trial Cost Estimate :
• Provide an estimate of the potential cost to your client if the case proceeds to trial .
11 . Critical Motions and Rulings :
• Identify any critical motions , like Daubert challenges or motion for summary judgment , that may affect the case outcome . Note any rulings issued thus far .
12 . Important Settlement Terms :
• Detail any unique settlement terms that may be of interest to your client , such as confidentiality agreements , noncompete clauses , or non-disparagement provisions .
13 . Additional Concerns :
• Address any other issues or concerns that could impact the settlement process or case resolution .
14 . Communication with Mediator :
• Indicate whether you ' d like to speak with the mediator before the mediation session .
15 . Supporting Documents :
• Gather and provide relevant documents , such
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as contracts , expert reports , photographs , repair estimates , HOA documents , and other evidence to help the mediator fully understand the case .
In conclusion , successful mediation hinges on effective communication and thorough preparation . By providing the mediator with a comprehensive Mediation Summary Outline , you lay the foundation for a productive negotiation process that can lead to a mutually acceptable settlement . Remember , your input as attorneys plays a vital role in shaping the mediation ' s success and achieving a favorable outcome for your clients .
Mark Greenberg is the President of Breakthrough Mediation . He has tried over 100 cases to verdict , representing both Plaintiffs and Defendants in state and federal court . He now mediates cases throughout Florida , saving clients over $ 100 million dollars in legal expenses , while helping them find peace in the resolution of contentious disputes . www . btmediation . com
For additional ADR tips and resources , go to www . palmbeachbar . org / alternative-disputeresolution-committee
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