PBCBA BAR BULLETINS pbcba_bulletin_April 2019 | Page 6

ADR C o r n e r
Don’t Go Into Mediation
Without Being Fully Prepared
KENNETH D. STERN, CIRCUIT JUDGE (RET.)
Often, otherwise competent attorneys
fail to create success for their clients in
mediation, because they do not take the
process seriously enough to prepare for
mediation as thoroughly as they prepare
for trial.
Why would any competent
attorney, who is dedicated to satisfying a
lawyer’s fiduciary obligations to a client,
nonetheless fail to satisfy those obligations
where mediation is concerned?
For more than one reason. First, many
attorneys fail to appreciate how much can
be accomplished at a mediation. When
properly prepared, a skillful trial lawyer
can tactfully and credibly point out the
strengths of his or her own case or defense,
and stress the uncertainty and risk the
opposing party faces at trial. Moreover, if
the joint session and the caucuses reveal
the existence of adverse testimony or
evidence supporting the other side, the
attorney can stress this to his or her own
client, without appearing to be weak.
Second, the lawyer must prepare the client
for mediation. This involves more than
merely explaining that the parties are
required to attend a meeting to discuss
settlement. The lawyer should schedule an
in-office status conference with the client,
to review the evidence and the chances of
winning and the risks of losing. The client
must be made to appreciate the variables
in a trial, such as how the witnesses
will appear to the jury, whether they will
be believed, whether there are other
witnesses, documents or other evidence
to corroborate each witness’s testimony,
etc. Thus, if the lawyer suggests settling
the case during the mediation, the client
will not think that the attorney is merely
telling the client to throw in the towel.
Third, the attorney must be certain that the
evidence s/he has obtained from the other
side is genuine, and never settle for hard
copies of documents. One must always
insist on electronically-stored information
(ESI), on CDs, for example, and seek the
advice of a computer-savvy expert to
assist in framing discovery demands, to
ensure that the evidence received will
contain “metadata” which will enable the
expert to ascertain, for example, if any
documents were altered since first created,
or whether a document was created on the
date shown on the document, or whether
it is newly-fabricated to appear to “prove”
a statement or meeting which did not
occur on the early purported date, etc.
Always remember that one has a high risk
of committing malpractice if one fails to
discern the fraudulent nature of altered or
fabricated documents. The attorney should
retain an expert who can competently help
to frame document discovery requests in
ways that will produce evidence capable of
being examined.
Finally, the attorney must establish rap-
port with the Mediator as far in advance
of the mediation as possible, and solicit
his or her assistance with problems one
can anticipate. For example, if the client
is suspicious of the mediation process and
likely to resist settlement even where it is
clearly advisable, the attorney should tell
the Mediator, and discuss the situation.
The skillful Mediator will be sure to make
comments at the opening or joint session,
and/or during caucus, stressing the im-
portance of making the best settlement
possible at mediation in order to avoid the
risks and uncertainty of trial, and assuring
both clients that if their attorneys discuss
the potential for settlement, this does not
mean that they are weak. Sometimes only
the “authority figure” can set the stage for
settlement. The attorney may “enlist” the
Mediator to avert potential problems as
well as to deal with existing ones. The Me-
diator will be equally helpful to the other
side, without revealing to either attorney
what the opposing counsel has confided to
the Mediator.
The bottom line is that mediation is too
crucial a tool for the trial attorney to ig-
nore. Make the most of it.
For additional ADR resources and tips go
to http://www.palmbeachbar.org/adr.

Since his retirement from the Circuit Court
bench, Judge Stern has served as a Medi-
PBCBA BAR BULLETIN
6
ator in Circuit Civil, Family and Appel-
late cases. He also is an Arbitrator (AAA
approved), a Special Master helping to
move cases toward resolution by hearing
many motions which were languishing
on crowded court dockets, and an Umpire
in disputes involving homeowners’ in-
surance claims in damage cases. Judge
Stern may be reached at kdstern@gmail.
com or 561-901-4968.
The Criminal Practice Committee of
the Palm Beach County Bar
Association
presents
Criminal Law Primer:
Federal & State Practical
Comparisons from the Bench
Friday, May 3rd, 2019
11:45 AM - 1:00 PM
Bar Association
1507 Belvedere Road
West Palm Beach
Register Online Today!
PalmBeachBar.org