Preparing a Client for Mediation
This outline was prepared by Hugh Breckenridge to assist attorneys in consulting with their clients and preparing themselves and their clients for the mediation process. Hugh Breckenridge
Mediation Services
I. Explain the Concept
A. Mediator’s Role : The Mediator’s role is not to weigh the evidence, to evaluate the case or to determine who is right or wrong. His only job is to facilitate an agreement between the parties.
B. It Takes Time : A Mediation takes a minimum of two hours, and in any significant case all day or more. Page 2 of Preparing a Client C. Willingness to Negotiate: The parties must be willing to give and take, so dissuade your client from an all-or-nothing approach.
D. Bargaining: Expect a minimum of three moves to reach a bargain. A good mediator will discuss with each of the parties a range of settlement, both in terms of dollar amounts and other issues, and then work to move them together.
E. Mediation Brief: Expect to prepare either a letter or a brief for the Mediator outlining each party's position. The brief can be confidential or it can be shared with the other side.
F. Explain the Actual Process
1. There is an introductory meeting in a central conference room at which each party will be asked to introduce themselves and briefly explain their position.
2.The parties will then be split into caucuses at which the mediator will meet with them individually and discuss their positions and how best to make a proposal to the other party.
3.The mediator will then go between rooms, or have the parties come and go in one room, to continue to facilitate a deal .
4. The mediator's client is neither of the parties. The mediator's client is the deal.
II. Prior to Meeting with the Client, Review the Complaint and Answer
A. Available Remedies: What are the remedies sought and the various causes of action and what will the client achieve by a total win on any cause of action, on a compromise verdict or a partial win, and what will be the effect of a loss?
B. Unavailable remedies: Are there items or issues that the client wants that are not available remedies in the Complaint? Back Next