Every case is different, and the importance of
matching the mediator to the case cannot be
overlooked. There is a large reservoir of information
developing on most active mediators, and today’s
litigators should obtain and evaluate this information
before selecting the best mediator for their case.
5. Persuade the Mediator
Most mediators will accept and read a mediation
submission of 10 pages or less when it is received at
least 24 hours before the mediation conference. While
oral presentation at the mediation clearly outweighs
the effect of these submissions, the value of the
written submission should not be underestimated.
It represents the first opportunity to explain the
merits of the case to the mediator, and it provides
a framework for organization of the case which
can be used not only at the mediation conference
but later in trial briefs and arguments to the jury.
Although mediators are neutrals and should never act
as an advocate for either side, they are clearly better
equipped to articulate your client’s position in private
sessions with your adversary when they are truly
convinced of the merits. Although candor is necessary
to maintain credibility, every effort should be made to
present persuasive arguments to the mediator to support
your evaluation of the case and settlement posture.
6. Involve the Decision maker
What is necessary is that the ultimate decision maker, one
who is fully authorized and prepared to act, knows the
case and has ample opportunity to digest the evaluation
of trial counsel and be available and involved in the
process. This can be accomplished by telephone and
electronic communication very effectively, but only if
ther