Preparation for Mediation

• Author: JOHN HOLLANDER
• Pages: 5-31

preparation for mediation

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chapter one

Preparation for Mediation

   that lawyers do, preparation leads

to success. e more that lawyers prepare, the greater the

chance that the outcome will coincide with their forecast

and opinion. If the outcome is likely to be unfavourable,

lawyers advise their clients to settle. ere is a good rea-

son why few civil cases reach superior court for trial.

Mediation often takes place very early in the litiga-

tion process, and it occasionally happens before the pro-

cess has even started. With only minimal legal steps taken,

how can lawyers prepare for mediation?

ere are usually at least ve parties to mediation:

the two lawyers, their two clients, and the mediator. In

multi-party cases, the number can rise, and the number

of players often inuences the preparation. Parties ally

themselves with other parties as bets the situation. A

friend at mediation may be an enemy later in the process,

and vice versa.

Consider that each of the players has an agenda. Only

one, the mediator, thinks that settlement is an objective

in and of itself.

   

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How Can Lawyers Increase Their Chance for

Success at Mediation?

   that any settlement (within rea-

son) is benecial to the parties when compared to the

risks and costs of litigation. Taken as a whole, litigation is

a negative sum game. Party A pays Party B, both parties

pay their lawyers, and the public pays for the court’s ad-

ministration. erefore, resolution of the dispute should

be seen as a success to the stakeholders taken as a whole.

Lawyers should work together co-operatively to in-

crease the chance that mediation will end well. How can

they do this?

.       .

ey should avoid using inammatory language. Any-

thing that represents an accusation or an insult will

likely provoke a response that is equally inammatory.

is escalates the stress and friction with little benet.

.        

  . ey should anticipate the oppon-

ent’s positions, take these into account, and proceed to

not act in a way that makes it less likely that the other

party will agree to terms. For example, if the defendant

is insured, the plainti should not advance a claim for

an uninsured head of damages or insist upon payment

of an amount in excess of the policy. How will the op-

position react to this position or that one? Will it help

or harm the chances for settlement? Does the point

have to be made?

.       : .

ey should know their case and its weaknesses. If so,