Mediation Practice Pointers

(From the American Arbitration Association – 2011 Construction Conference.)

A. Mediator Practice Pointers

  1. Plan to engage in Mediation as early as possible before fees and costs mount
  2. Have a Plan for picking he right mediator for your specific case.
  3. Do your Due Diligence and thoroughly investigate the Mediator’s qualifications.
  4. Insist on Speaking “Live” to the selected Mediator in Advance of the Mediation Session (Establish a personal relationship with the Mediator).
  5. Recommend in Planning that lunch be brought in to insure maximum use of time at the Mediation Session.
  6. Speak “Live” to opposing counsel to ask what helpful information / documents / analysis you can bring that would help. (Encourage the parties to share information)
  7. Confirm that all stakeholders in the dispute will be attending the Mediation Session.
  8. Confirm all insurers with potential financial responsibility will be attending and will have settlement authority.  (Ask what the level of authority is)
  9. Devise before the mediation a “Big Picture” Mediation Strategy and be thoroughly prepared.
  10. Identify your opponent’s likely attack on your positions and have counter points prepared.
  11. Prepare a list of ammunition to provide to the Mediator to shoot holes in your opponent’s positions.
  12. Prepare and submit to the Mediator a table showing all affirmative claims in the case and who they are against.
  13. Prepare and submit to the Mediator a table showing all affirmative claims by Subject Matter.
  14. Prepare and submit to the Mediator a service list and Listserv with the emails of all counsel, parties, carriers and experts.
  15. If the case is complex, ask he Mediator to schedule early presentations of the affirmative claims and allow questions by the participants.
  16. If there are multiple parties, ask the Mediator to prepare a schedule for each session to avoid wasting time.
  17. Insist on a Joint Session / Presentation in advance of the parties commencing actual negotiations.
  18. Make the Mediator earn your trust.
  19. Make the Mediator work for you.
  20. Trust and be honest with the Mediator but never, never, never give the Mediator your bottom line.
  21. Keep calm and always bring the negotiations back to the key settlement factors.
  22. Keep focusing on how the parties can achieve a mutually acceptable result.
  23. Do no be afraid to ask to talk to another party directly.
  24. Do not hesitate to make recommendations to the Mediator as to potential partial or global settlements.
  25. If the case does not settle at the first mediation session, make sure the Mediator continues to communicate.
  26. Do not be afraid to just say No and walk away.
  27. If the case settles, never leave the mediation session without a written, signed settlement agreement.
  28. Always do a post-mediation follow-up with the Mediator.
  29. If the case does not settle in Mediation, contact the Mediator after trial or arbitration to discuss the results.
  30. Never, Never, Never forget that all disputes are driven by human emotions and knowing that is the key to success.