ADR CORNER
ADR CORNER
Preparing for Mediation
JAMES B. BALDINGER
Mediation is a powerful opportunity to craft a creative settlement that serves your client’ s interests- potentially making you their go-to problem-solver for future disputes. Even if you don’ t settle, mediation is a useful tool for engaging deeply with your case, connecting with your client, and gaining insights that could benefit you at trial. Lawyers who treat mediation as“ checking a box” so they can get to trial risk missing out on these advantages. Of course, your ability to prepare may be limited by the case ' s value, time constraints, or other factors. But like many things in life, getting the most out of mediation requires time and thoughtful preparation.
Here are some pro-tips for effective mediation preparation:
Do Your Homework Cases often don’ t reach mediation until months or even years after filing. By then, factual and legal issues may have evolved significantly. A critical part of mediation preparation is knowing your case thoroughly: witnesses, evidence, legal claims, defenses, and the remedies sought.
Start by reviewing the current operative pleadings- the complaint, answer, counterclaims, and defenses- and understand the elements that must be proven at trial. Assess the evidence obtained through discovery and determine how well each side can meet its burden of proof. Then, evaluate the remedies being sought and consider the best, worst, and most likely outcomes. If mediation occurs early in the litigation not all those issues may be fleshed out, but a solid grasp of the available information will make you as effective as possible.
Be sure to calculate the fees and costs already incurred and estimate the cost of taking the case to trial. Even if attorneys’ fees aren’ t recoverable, this can influence settlement strategy and decisions at mediation.
Don’ t overlook the decision-makers. Gather intel on the judge, arbitrator( s), or potential jury pool, and how they’ ve ruled in similar cases.
Communicate With Your Client Once you’ ve reviewed the case, meet with your client to prepare them for mediation. If they’ re unfamiliar with the process, explain what to expect. Clarify whether the session will begin jointly or in separate rooms, and explain the mediator’ s role.
Emphasize that mediation isn’ t adversarial— it’ s a chance to find common ground. Let the client know that your tone in a joint session may be more conciliatory than it would be at trial. Also, set expectations around time: mediation can be slow and require patience, with long waiting periods while the mediator speaks with the other side.
It’ s important to be candid about the case’ s strengths and weaknesses, and the risks of proceeding to trial. An honest discussion will help your client be realistic about potential outcomes and possibly more open to compromise. You don’ t want your client to learn about weaknesses in the case for the first time from the mediator or opposing counsel during mediation.
Crucially, talk strategy. What settlement terms are acceptable? What should the opening offer be? Are there any insurance or third-party considerations? Encourage flexibility- your client may hear things that challenge their assumptions and require reevaluation. Make sure they come with sufficient settlement authority and a clear understanding that any agreement is voluntary- they should never feel pressured to settle.
Clients often have valuable insight into how the opposing party views the case. Use that to anticipate offers or demands and identify potential paths to resolution.( For more on this, check out my blog post at https:// shorturl. at / 6k8AD.)
Finally, brainstorm creative settlement options. Mediation allows for more flexible solutions than litigation, such as a business benefit that can be conferred in lieu of damages or other relief sought in the case. Be sure to allow your client enough time to raise outside-the-box settlement solutions with others in their organization and obtain any necessary approvals.
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PBCBA BAR BULLETIN 6