PREPARING FOR MEDIATION

 

Attorneys

Clients

 

 

 

 


“What we got here is failure to communicate.”

Strother Martin-actor
In Cool Hand Luke

 


PREPARING FOR MEDIATION

At Christopher Stanley & Associates, our mediation style is straightforward.  We focus on getting to the core issues, efficiently and effectively. 

Mediation is a useful tool to resolve matters without incurring additional court costs.  Often, successful mediation allows both affected parties to come to an equitable resolution.

Come prepared for mediation.  Both affected parties need to be fully briefed and ready to discuss the issues in contention.  In the most effective mediation cases, the parties share statutory and case authority they are relying on beforehand, this saves a considerable amount of time and frustration.

 

Know your case.

  • Know which facts are disputed and which are undisputed.
  • Know which facts are critical, which are important, and those that are merely background information.
  • Know the elements of your cause(s) of action and facts.
  • Know reasonable damages or other desired relief, if seeking relief.
  • Know counter-claims, defenses, and liability issues.
  • Know comparable jury verdicts, if applicable.

 

Know your alternatives to settlement.

  • Know your risk - mediation versus trial.
  • Know time commitment and expense of a trial.
  • Know what results are likely from a trial.
  • Know the affected party's options such as binding arbitration or binding summary trials.

 

Educate your client.

  • Explain the mechanics of the system (especially how a mediation session goes).
    Goal: Have the client understand the procedures and keep them from being surprised by the process.
  • Explain the facts as the law sees them.
    Goal: Help the client to understand that what matters are not "the facts" but the admissible evidence. This helps clients avoid trouble later.
  • Explain the law as the State has created it.
    Goal: Help the client understand that the result they will get will not necessarily be what they think is fair but what the law allows.
  • Update the status of the case (where everything is, "how much longer.").
    Goal: Help the client understand how much, or how little, time settlement can save.
  • Explain the status of negotiations (if any).
    Goal: To make certain that the client approves of at least where the negotiations will start.
  • Determine and set the goals that the client is seeking from the dispute and the resolution process.
    Goal: To make certain that you are headed in the right direction in what you are seeking from the mediation session.
  • Define your client's objectives.
    Goal: To get concrete goals.
  • Examine the alternatives to the client's objectives.
    Goal: To help the client think in terms other than win/loss.
  • Explain to your client the alternatives to settlement. (including risks, delays and enforceability/collectability of judgments problems, if any).
    Goal: To help the client realize that having a trial and receiving a verdict is not necessarily the end of the process.

 

Validate your opponent's file.

  • Review and make certain that the other side has all of the materials necessary to fully negotiate. 21% of all failed mediations fail because one party did not prepare properly -- often simply because a necessary medical report, bill, or similar item was not provided to them (or not had by the party who should provide it). This is especially important in 1/2 mediations since tracking down and trading information wastes time.
  • Your goal is to make certain you have everything you need by making certain the other side has been sent everything they should have and that you have asked for and obtained the items you feel you should have from them. You should also read everything again at this point -- before you send it.

 

Review the mediation checklist, provided below.

  • Once you have prepared, using the four steps provided above, you can set up the mediation by using the checklist below. It covers the basic steps and considerations necessary to set up a successful mediation of most conflicts that are in litigation.

 

PRE-MEDIATION PAPERWORK

Please review the "Client Page for Mediation" to determine if it would be useful for your clients to review prior to mediation.  It is important that they understand the Mediation Rules and Mediation Confidentiality Agreement.

 

Christopher Stanley & Associates will need the following from affected parties.

 

In All Cases:

PLEASE NOTE: By participating in this mediation, all parties and their counsel agree to abide by the Mediation Rules and the Mediation Confidentiality Agreement unless an arrangement to the contrary is made among the parties and the mediator prior to the mediation.

 

Confidential Pre-Mediation Papers for Mediator:

  • Concise statement of issues and positions.
  • Identify strengths and weaknesses.
  • Provide timeline for case and for negotiations.
  • Detail who will be present and their relationship to the case. Verify that you have settlement authority that the other side expects you to have. If you're not going to have an adjuster there who is actually working the file (eg: there by phone or a local adjuster there instead), advise the opposing counsel and work that out with him/her before the mediation.
  • Supplement as to appropriate "live" pleadings and case law. This is a one or two page summary. You don't need to write a brief for me, and please don't posture. If a trial brief already exists, it would be helpful if I could see it. I've found that a very effective use of this mediator summary is to give the other side as much of it as you can, and get them to do the same. I will assume all of it is confidential unless you tell me otherwise.
  • Please bring a check to the mediation. Our billing practice is to charge the minimum of four hours for a 1/2 day and eight hours for a full day. We additionally charge for each 1/2 hour we go over the allotted time, if that time is available.

 

In Civil Cases

  • Be ready to talk about the ability to, and extent to which, the party seeking affirmative relief will be able to collect a judgment from a defending party
  • If any potential third-party defendants are still out there, discuss with the other side how you can get everyone at the mediation that needs to talk prior to the mediation taking place

 

In Family Cases:

  • If there are parents or significant others that your client is going to call before they agree on a settlement, they need to be there.
  • If there is an ad litem involved and no report has been issued, consider either getting a report or having the ad litem there.
  • If there are surprises out there that haven't been disclosed to the opposing party (pregnancies, engagements, etc) consider disclosing that to the other side before the mediation, so that we can get past the initial emotions before we have to work on the issues that can be helped in mediation.

 

PRACTICE AREAS

  • Construction Litigation
  • General Civil Litigation
  • Personal Injury Litigation
  • Small Business Support

  • Mediation of Civil & Family
    Disputes
  • Medical Malpractice
  • Lien Bond Claims & Defense

CONTACT

T: (512) 869-7566
F: (512) 869-8312
1104 Rock St., Georgetown, Texas 78626

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