Preparing a Client
(Continued)
Hugh Breckenridge
Mediation Services
C. Back Breaker Issues: Are there determinative legal issues that can be lost on summary judgment or are there total defense to the complaint (such as statute of limitations)?
III. Prepare a List of Deal Points, Negotiable Items and Confidential Points
A. Deal Points: Deal Points are those wants by the client that are so significant that if the client does not get them, he would be unable to make a deal.
B. Negotiable Items: Items which can be compromised or adjusted by negotiation.
C. Throw Aways: Items bargained for early in the mediation but which the client will willingly give up to get his Deal Points.
D. Confidential Points: Items undisclosed in discovery which, if disclosed, are determinative in the case. The Mediator will maintain these points in confidence, but can use them indirectly to sway the negotiations.
E. Make List: Prepare list of Deal Points, Negotiable and Non-Negotiable Items for your opponent. Don't be surprised if, during the mediation process, many of these points turn out to be not important.
IV. Establish a Range of Settlement Options
A. Clearly Disputed: Are there issues clearly in dispute? Identify each issue and go over total or partial resolution by agreement or trial.
B. Clarify Expectations: Ask your client what his expectations are.
C. Assess Risks: Go over with your client the probability of a total win in litigation and what that would cost and how long it would take.
D. Review Court Process: Discuss with your client the appeal process and the difficulties of collection.
E. Threshold for Settlement: Try to establish a threshold at which it is more cost beneficial to litigate rather than to settle, and then work settlement ranges from that threshold.
F. Establish Initial Offer: Try to establish an initial offer at the settlement discussion which supports your position, has room for movement, but is not insulting to the other party.
Be prepared to let the process work. Good Luck! Back Next