United States Arbitration & Mediation of Oregon, Inc.

 

 

Secrets to Successful Mediation

From US&M of Oregon

 

 

 

•    First, do your homework. Research jury verdicts in similar cases, preferably cases with the same trial counsel and the same county. A good place to start for Multnomah County jury verdicts is http://www.mbabar.org/courts.htm.

 

•    Make sure your client understands the process and knows what to expect before the mediation. Many clients are confused between the mediation and arbitration processes and believe that the mediator will make a decision on the case. Also, make them aware ahead of time that initial offers and demands may be unrealistically low or high and that this is part of the process and they should not be "offended" by this.

 

•    Take a tip from pre-debate politicos. Manage your client's expectations by talking up the strength of the opposing party's case. This will increase the probability of settlement and burnish your client's impression of your own performance.

 

•    It is often helpful for the mediator to have discussions with counsel outside the presence of the client. This can be helpful if the client has unrealistic expectations or is unwilling to recognize the risks of the case. Representing attorneys can often be more candid with the mediator about this outside the presence of their client. Do not be afraid to speak to the mediator alone to develop a strategy on how to handle this.

 

•    Keep mediation briefs short, ideally five pages or fewer. Include an accurate negotiation history of prior offers in the brief. Inaccurate depiction of prior offers casts a negative impression.

 

•    When you get to the mediation, remember that it's not a trial, it's “Let's Make a Deal.” The mediator is neither the judge nor the jury. Do not bother to educate him or her on the physics of whiplash.

 

•    Some mediators believe that it is helpful for everyone to meet briefly together so the mediator can explain the process to the parties. The attorneys need to provide the mediator with a heads up if there are emotional issues that preclude a joint meeting with the parties and their attorneys. For settlement purposes, try to put yourself in the position of the opposing party to understand the reasoning of the other side of the case.

 

•    Minimize your focus on legal issues and concentrate on how a jury would respond to the case. Focus on how the parties and witnesses will perform on the stand.

 

•    Designate one member of your team as the spokesperson. This person should do most of the talking when the mediator is in the room. The process works better if it is clear who is in charge on each side.

 

•    When the mediator asks for an opening offer, make an offer that will keep the other party from walking out, but one which also gives you as much room to move as possible. A good mediator will be able to give you guidance on a good starting number.

 

•    Do not tell the mediator your bottom line before he or she asks for it.  Good mediators need to be able to honestly tell both parties that they do not know the other party's bottom line in order to feel out the settlement options for the case.

 

•    Consider using "bracketing" offers to move the process along. For example, "we will come down to $150,000 if the other side comes up to $70,000." These usually work best after at least 2-3 exchanges of offers. Using this technique can help bridge a gap when things seem to be moving slowly.

 

•    Do not leave the mediation until you are sure the process is at an end and the parties are at an impasse. It is easy to become frustrated with the process, offended by the offers and "walk out." Stay with the process.

 

•    Even if the parties seem unable to settle, if the mediator thinks the parties may be close, don't close the door entirely. Offer to resume the mediation after a break of a couple of hours or to consider a written settlement proposal from the other side the day after the last mediation session.

 

 

USA&M of Oregon panel members Ed Brunet, John Cavanagh, Jane Clark, and Michael Dotten and USA&M of Oregon Managing Attorney Evan Seifert contributed to this article.

 

Go here to read the full article in the Oregon State Bar Bulletin