Mediation in Specific Subject Areas

mediation in specif‌ic subject areas
chapter seven
Mediation in Specif‌ic
Subject Areas
   a forum for negotiation. It is, in ef-
fect, a managed business discussion. How the discussion
is managed depends upon the circumstances of the case
as well as the nature of the participants. e thrust of this
handbook has been to identify issues and present ideas
that relate to both the circumstances and the participants.
When it comes to mediation itself, the habits and
practices vary from subject to subject. Negotiation in
contract cases diers greatly from that in family law cases,
tort actions, or intellectual property cases: the parties are
dierent, lawyers and mediators are dierent, the stakes
are dierent, and the emotional involvement is dierent.
Of course, each case diers from all other cases. However,
it is fair to suggest that cases within a subject area tend
to resemble other cases in that same area to some extent.
As part of the preparation for this handbook, sever-
al senior mediators were consulted and have graciously
volunteered their comments. is handbook has several
such commentaries sprinkled throughout the chapters.
Some of these mediators have contributed articles
that highlight the issues that face them in their specic
   
specialty subject areas. ese articles follow. ey are
thought-provoking and based upon lengthy experience.
From The experT
Mediation in Personal Injury Cases
kevin mullington
   is perfectly suited to personal
injury matters. It provides the parties an opportunity to
take an active role in protracted negotiations, which often
result in the parties nding some common ground the
Generally, mediation in a personal injury case can be
broken down into four parts: the preparation, the open-
ing, the negotiation, and the settlement.
The preparation
   out of the mediation process in a
personal injury matter requires counsel to have prepared
months in advance. Counsel must ensure that they have
secured the necessary experts’ reports (medical, future
care, actuarial, and so on) and provided them to their op-
ponent in ample time for them to secure rebuttal reports
if needed.
Prior to the mediation, counsel should also have
interviewed all of the important witnesses to their case so
that counsel can accurately report the witnesses’ expected
evidence at trial. Although often overlooked, this type
of evidence can make or break a case for a client. Often

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