by Andrew K. Jenkins
In case you missed it, on December 11, 2013, DAYL’s CLE Committee sponsored a discussion on mediation in the course of litigation. Judge Ted Akin and Kevin Fuller discussed how to prepare for and get the most out of mediation. Here are a few of the high points:
- Prepare for mediation as if you were preparing for trial. Only 2% of lawsuits actually go to trial. This means your case will likely settle. Mediation is great opportunity to get a settlement. Make sure you know the law. Make sure you know the facts. Make sure your client is prepared as well. Help the mediator prepare. The more the mediator knows the more beneficial it is to you.
- Do a general session at the opening. It is not a waste. This is one of the very few chances you will have to speak to the other side in an unfiltered way. State your case as firmly as you can without being offensive.
- Know what your client wants and why. Sometimes the what and why do not match up. The why is more important. Also in mediation you will get the chance to find out what the opposition wants and why.
- Keep your eye on what’s happening to the pie. All resources are finite. Spending $20,000 in attorney’s fees to get the last $100,000 makes a client a lot happier than spending $100,000 in attorney’s fees to get the last $20,000. Happy clients are good for business.
- Have a plan to close and paper the deal. Agreeing in principal is not really agreeing. If you can iron out the details while everyone is cooperative, you have much better chance getting a good deal all around.
Negotiating/mediating is not the same thing as litigating. But be prepared as if you are going to trial.