By Steven N. Joseph
(Please note that the views expressed in this article are written as my own views to provide guidance for defense counsel, and do not in any way, reflect those views of Western World Insurance Company, Validus Specialty, or AIG.)
You and your adversary have now agreed to mediate the dispute. However, it is just like when you throw a party. You need to put a lot of planning into the party if you are going to throw a good one. This article discusses how to effectively plan for a mediation so you end up with the result you want, and with a lot of surprises and an unhappy client.
A. Selection of the Mediator
If you are dealing with a run of the mill small dollar dispute type of case where the parties on both sides are relatively close in their positions, and are both eager to resolve the dispute, the selection of the mediator will not be a big factor. However, if you are dealing with antagonistic parties and high stakes at both ends, great care and some due diligence is required when selecting or recommending a particular mediator.
ü Select a mediator to fit your particular case.
The bottom line is that both sides together are hiring an advocate to present in a neutral fashion their own position to the other side. This being the case, it may be important to learn about the kind of mediator they are hiring: the particular mediator’s methodology to mediating, the mediator’s experience in a particular case area, how the mediator was able to get closure in similar cases, a list of references, the mediator’s success ratio, whether the mediator has the reputation of “splitting the baby,” whether the mediator tends to be more “facilitative” or “evaluative,” and if the mediator is evaluative, at what point in the mediation will he or she take this tack?
ü Who would carry a great weight of influence with the other side?
In one case I handled, the client on the other side was an elderly gentleman who happened to have been an alumnus of Harvard University. We knew that the mediator we would select would have to be someone that this gentleman – the “decision-maker” would listen to. It was no accident that we selected a retired judge who also had been a graduate from Harvard to be the mediator.
ü Who would be able to control an “out of control” adversary or “difficult” client?
I had one case that involved an attorney who was known to walk out on mediations after making outrageous demands. I have had many cases where the other side admittedly had a difficult client, and really needed help from a strong mediator.
In the first case, we were able to get a mediator whom we knew would control the proceedings and not let the proceedings control him. In the latter situation, we paid particular attention to our adversary’s choice of mediator who genuinely felt that the proposed mediator would have a substantial influence on his own client.
ü Facilitative v. Evaluative
If you have a particularly strong case, but are met with consistently outrageous demands and positions, you may want to push the case to a mediator who is more evaluative. This type of mediator will not shun away from giving an assessment or prediction on what may happen if the case does not settle, and may also push the parties harder to accept a compromise resolution.
One particular situation where you may lean towards a more evaluative mediator is when you have an unsophisticated party in the other room. Here, think about using a retired judge who may have a strong opinion of the case that will benefit your client. This would give your client a significant advantage in resolving the case closer to the number that your client is willing to agree to.
A facilitative type mediator, who plays more of a devil’s advocate role, will look more closely to determine where the parties’ interests lie. This type of mediator may be more suitable in a case that has some weaknesses, but there are other factors in your client’s favor that dictate a compromise resolution.
The best evaluative mediators are the ones who can avoid giving the appearance of being evaluative. Their questions may be followed up with a show of dissatisfaction in the response. “Do you really believe that?” It may be followed up with a tougher question. It may be an opinion taken from the mediator’s past experience.
I attended a mediation once where the mediator sent everyone to dinner while he went to do research at the law library. He came back the next day with case law that neither side cited in their mediation briefs. He used the case citations to get both sides to the number that he felt the case should resolve at.
ü Who would be able to bang heads?
Some mediators have the reputation of being a “head banger” or an “arm twister”. You want to get the case settled for your client. The other side sees the litigation as a “cash cow” for their law firm, and obstructs any talk of reason. You may want to push for the mediator who bangs heads in this situation.
ü Use the selection of opposing counsel’s choice of mediator to your client’s advantage.
If the other side insists on using only one particular mediator to the exclusion of everyone else, you should naturally be suspicious. There is no case so complex or so unusual that would justify one side’s position that God has created only one mediator with the ability to resolve your particular case.
However, in many instances, each side provides their own list of mediators to choose from. If you then do your homework on the mediators proposed, it can be to your client’s advantage to select a mediator from your adversary’s list.
a. Credibility. Your adversary’s selection of a mediator will have credibility to get them to move off of their position. If their selection of a mediator presses them on their weaknesses, they cannot say that the mediator has any sort of bias towards your own position.
b. Strength. This is a great way to express confidence in your own client’s case, and show that you are not afraid to present your position before a mediator of your adversary’s choosing.
c. Good faith. It establishes that you are taking a step to negotiate in good faith, and your adversary may take this a signal to be more fair in their position. If the mediation fails because the other side walked away, this is something you have in your back pocket when you explain to the trial judge why the case has not settled.
d. Public relations. Even if this selection is fair and neutral, you still can attach to the mediator a stigma that this was your adversary’s choice of mediator, implying some sort of unspoken bias. When a case is not settled, sometimes the judge wants to find out who has been the more reasonable party, and who has been the problem.
B. Establish Your Agenda Through a Pre-mediation Conference
Once the mediator has been selected by the parties, many of the other issues, i.e., time and place of the mediation, length of mediation, extent of written submissions, use of experts, etc. can be then be worked out using the mediator. Once the mediator is selected, the parties can have an initial meeting with the mediator or use a telephone conference to work out any outstanding issues between the parties.
ü Pre-mediation Conference
If your case is complex enough or if your adversary is extremely difficult, you might suggest to the other side, to the mediator, or to both to first hold a pre-mediation conference. The line I most often use in explaining this request is to say “if you are going to climb Mount Everest, it might be a good idea to first take a look and see what the mountain looks like.”
Surveying the mountain, the expert mountain climber can decide what strategies to employ to climb the mountain.
The same can hold true for mediators. If the mediator meets with both sides separately, and gets a sense of the personalities involved and the various conflicts that separate them, the mediator can then put together a game plan to get the sides to resolve their conflict on “game day” at the mediation.
This is your first opportunity to suggest to the mediator ways for the mediator to be successful. It is in the mediator’s interest to be successful, and if it is your side that continually provides the mediator with a blueprint for that success, the mediator, in all likelihood, will be more attuned to the position you take at the mediation.
In other words, if I am the one to suggest to the mediator how to climb this mountain of a dispute the mediator will likely be thankful that I was looking out for the mediator’s interest in not falling off the mountain.
As such, this is an opportunity for you to help establish the game plan for the mediator so that the game is played on your home field. For example, I have a case where the damages that the plaintiff can claim are substantial. As part of the defense team, I believe that we have very credible defenses that need to be outlined, I may suggest that the submissions be somewhat more extensive than a two page summary because I want to make sure that the mediator fully understands our defenses, and will not get blinded by the large dollar signs that will get put on a powerpoint display at mediation.
If we are dealing with a complex case that requires more than one day, and I believe the other side is being unrealistic, I may want to have a strategy in which the mediator will have the entire first day spent solely discussing issues with no money put on the table.
You should never assume that it is only up to the mediator how he or she plans to run the mediation. When I make suggestions to the mediator on how the mediation may be run, though the suggestions are made to give my party an advantage, they are always put in the context on how the mediator can be successful, and how the mediation can end up with a successful resolution for both sides.
ü Know the difference between adversarial and hostile negotiations. Make the mediator aware of any possibility of a hostile negotiation.
An adversarial negotiation and a hostile negotiation are two different things, and only bad feelings and splitting headaches can come from confusing the two.
An adversarial negotiation in the context of mediation is when both sides in the diligent representation of their respective clients have recognized that a facilitated resolution is in their best interests, but the two sides have varied differences of opinions on what conclusions can be drawn from the facts and the law of the case.
A hostile negotiation, on the other hand, is where one side wants to draw blood, and make the other side look bad. They want to approach the mediation by not conceding even an inch. Here, the other side will look at mediation no differently than a professional wrestling match. They would eagerly smash a steel chair over your client’s head if that were permitted in mediation.
The pre-mediation conference can be used to make the mediator aware that the other side is likely to take such a hostile approach. The mediator can then be able to come up with ways to make the mediation an honest discussion of the issues as opposed to having the mediator acting as the messenger of threats, insults and attacks.
If you are faced with such a hostile situation, suggest to the mediator that it may be beneficial for the mediator to ask both sides questions after the opening presentations. The mediator can permit each side to comment on any one point made in response to a question. The questioning and interplay may assist the mediator on understanding the nuances on issues that will assist the mediator later in the process.
The hostile attorney will also look a bit out of place being hostile not only to an adversary, but to the neutral facilitator.
ü Confidential v. Exchanged Submissions
Attorneys may quickly assume that the mediation submissions are no different from any pleading or brief that is filed with the Court, and because of this, either the submissions will be automatically exchanged or exchanged by whatever rules the mediator decides. However, this is not necessarily the case.
Certainly, if your goal is educate the other side on the weaknesses of their position, exchanged submissions can be the first step towards doing exactly that. However, in a confidential submission, you may answer the two most important questions for the mediator. In your opinion, why have the parties up to this point, been unable, on their own, to resolve their differences? Secondly, what do you think the mediator can do that would assist the parties in getting a resolution?
By addressing these questions in a confidential submission, you can better identify those issues that the mediator can more effectively present in a neutral fashion to get movement from the other side. You can also use the confidential submission to make the mediator aware of any personality conflicts or other issues that may cause a problem at the mediation.
The parties can even have the best of both worlds. You can have an exchanged submission, with a confidential memo to the mediator. You can even decide to send your own private letter without even consulting the mediator or the other side. You ultimately call your own shots here.
ü Responsive Submissions and Limited Discovery
Mediation may be a good idea, but you are somewhat hesitant because the other side, invariably the plaintiff in this instance, has not provided you with any information about his or her case. Typically, the stumbling block in this situation is that you and your client do not fully understand the theories of liability or even the damages that they have laid out in a demand letter.
The way around this issue is to allow for limited discovery and responsive submissions. First, the parties can decide through the mediator what discovery may be needed not only for the defense but for the mediator as well. Once this is accomplished, the plaintiff’s side provides their submissions first to both the mediator and to you. Now that you have their submission and the limited discovery, you can better assess what the claim is, and what view of the case you will be taking.
ü Agreed Upon v. Disputed Issues of Fact
If the case is complex or if you believe that the other side needs an initial reality check, suggest to the mediator that the parties submit a joint statement of agreed upon and disputed issues of fact. While there may be haggling over the statement, the final draft will be extraordinarily helpful for the mediator to steer the mediation towards a discussion of what is really disputed between the parties.
ü Expert Witnesses
In some complex cases, it may be a good idea to suggest that expert witnesses take part in the mediation process to assist the mediator with his or her understanding of the case.
Certainly, if you present the choice of resolution at mediation or through a trial, having an expert present at the mediation establishes that both you and your client are ready for either possibility.
This can also be an advantage if your side happens to have the superior expert. This can be a unique opportunity before a trial to have an expert explain to the opposing side why they may have problems with their case.
The expert’s credibility may be less than the mediator’s, but the expert opinions may have a greater influence on the other side’s decision-making process than anything an adverse counsel may say about the case.
C. Preparation of the Client for Mediation
ii. Prepare the client to act as the decision maker.
The role that the attorney assumes at a mediation is that of an advocate as well as an advisor. The attorney will make the opening presentation, and in the private caucus session, highlight the legal arguments for the mediator. In private, the attorney will counsel the client on what position they may take in the settlement negotiations.
However, the attorney does not act as the decision maker. The mediator does not act as the decision maker. The client does. More importantly, most, if not all, mediators will look to the client as the decision maker.
And this may be a very unusual and a very difficult position for the client to be in. The court system places the decision making process in the hands of a judge and a jury. This may be the first lawsuit that your client has ever been involved with, and if not the first lawsuit, then maybe, the first mediation.
Also, both plaintiffs and defendants may be suffering from litigation intoxication. They go to the mediation consciously stating that they want to put the lawsuit past them and go on with their life. Subconsciously (or consciously), however, the lawsuit has become their life. They find that being in a lawsuit is exciting, and if they to decide to resolve the case through mediation, that excitement, even if exchanged for large sums of money, will be gone.
A client who is unfamiliar with the process, but who has ultimate faith in his or her lawyer may simply take the position “I’ll do whatever my lawyer tells me to.” This can be a mistake for both the attorney and the client. The attorney who had complete control over the client in the privacy of his or her own office will find the dynamics and the atmosphere created by the mediation process to be quite different. The client will hear negative things about their case from the adverse party. Very tough questions may be raised by the mediator that might not even have been anticipated by the attorney. Doubts in one’s case that are raised by the mediation process can lead to doubts that the client may begin to have about their attorney. The attorney who assumes the decision making role will not get any warning when the client decides at 5:00P.M. that he or she wants to take over the decision making reins and settle against the wishes of the attorney. This is embarrassing for the attorney, and leads to bad feelings with the client.
If it is in the client’s best interests to successfully resolve the case through the mediation process, the attorney should prepare the client to be the decision-maker at the mediation.
I have had a rash of mediations lately where we get late into the mediation process and the folks in our room get a sense that we are really making progress with opposing counsel. We sense from the mediator that opposing counsel senses the weakness in their position.
The mediator comes back into the room with our caucus, and with one sentence, takes all the air out of the room: “Opposing counsel has client control problems.”
This happens with both sides, and sometimes, a lawyer can have problems controlling me too! It may involve an insurance policy with a consent clause, and an insured will not provide their consent. I’m very understanding of this issue.
When someone tells me that the other side had client control issues, it really tells me that I’ve evaluated the value of the case right. Now, I have to evaluate how expensive it will be for me to be right, and continue the litigation.
So, sometimes, I throw the other side a bone. Ok. I’m rewarding the unreasonable client.
Other times, I’ll stay very firm. I know that it will be just too expensive for opposing counsel to have client control problems. It’s amazing how quickly someone can get control of a client when it will cost the attorney lots and lots of money!!
ü By agreeing to mediate, the client should be made aware that he has already made his first decision.
Mediation is non-binding and the process is generally facilitative, and many attorneys rightfully use these factors in making the “you have nothing to lose” argument to get the other side to agree to the mediation. Yet, it is a mistake to advise the client that there is nothing to lose because it may be non-binding and the process itself is facilitative.
By agreeing to mediate, the client has made the decision to make compromises in the settlement position that they had previously held. It would be a ludicrous situation and a very short mediation, if the two parties in a dispute went to mediation with one side proclaiming that they had made their “final – not a penny less!” demand, and the other side had made a similar “final – not a penny more!” offer proclamation.
Even if the mediation does not resolve in a settlement, mediation will result in what will be considered a binding change in the parties’ negotiation stance. If the parties go into the a mediation with a $1 million offer and a $10 million demand, they will have some difficulty in going back to these positions if the mediation ends with a $3 million offer and a $7 million demand despite whatever threats to take these offers off the table – once the mediation ends – are made. If you have offered $3 million at mediation, a retreat to a $1 million offer will not be taken seriously by the other side or the trial judge who may later attempt to settle the case.
ü Help the client decide what change in their negotiation position they are willing to make at a mediation resulting in an impasse.
The above scenario can be extremely frustrating to a client. In the heat of the moment, the mediator got each side to go up and go down simultaneously – in the millions, no less, but yet, neither side has anything to show for it. In fact, even though the parties may be closer numerically, because of the impasse, they are even further apart.
If your client is the one offering the money or lowering the demand to settle, the two days of mediation cost them a $2 million change in their position. That is a very expensive result where the client may have originally been told they had nothing to lose!
Thus, before you go to a mediation, help the client be a decision-maker at the mediation by deciding before the mediation exactly what is the most the client is willing to change their position even if the mediation results in an impasse. Also, does that number depend on the move off of the offer or demand that the other side makes? Using the previous example, would the client have felt comfortable going up to a $3 million offer if the other side came down to a $5 million demand (as opposed to $7 million)?
ü Prepare the client on what the other side will say.
Up until now, you may have told your client what a great case they have. Now, the client will have a chance to hear the other side’s version. The client should be prepared to hear about the weaknesses in his or her position, and the client should also be familiar with your response. You should also review with a client any issues that the other side may put on the table that would cause a change in your client’s decision making process.
I attended a mediation held in a hotel conference room, and they had the coffee and hot water set up right behind the mediator. He walked into the room, and within ear shot of the mediator and the plaintiffs, said in a very loud voice; “Hot water!! Just like what I’m in!!”
ü Prepare the client on what you will say and when you will say it.
The attorney should make sure that everything he or she plans to say in the opening presentation or in a private caucus session is accurate. You want to avoid a situation where the client corrects the attorney or vice-a-versa. You also want to let the client know exactly what issues will not be raised in the opening presentation, but will be discussed with the mediator in the private caucus sessions. You will also want to advise the client beforehand of any sensitive issues that may not be raised in either the opening presentation or the private caucuses.
ü Prepare the client as to what to expect at the mediation.
If your client is not familiar with the mediation process, he or she should be briefed on what to expect and have been prepared as to the role the client plays in mediation.
Your client should understand what is likely to happen, on what schedule, and who will be present at the mediation.
ü Advise the client in advance on the projected trial date, the length of a trial, and your estimate for the cost of preparing and trying the case for the client.
Imagine what would happen in a mediation given this scenario: After you prepared the client on all the legal issues for the mediation, the client decides that an attempt should be made to settle the case at mediation somewhere in the range of $500,000-$700,000. At the mediation, the other side makes a demand to settle at $1.25 million, and gives a hint that they may be willing to settle for $1 million. The mediator makes an inquiry directed to you on how much you believe it would cost to prepare and try the case to verdict. Giving this question about thirty seconds of your thought, you reply $1 million as a very rough estimate. The face of the client shows shock and surprise.
This automatically creates an issue for both the mediator and the client. If the client is willing to spend $1 million and still face the risk of an adverse verdict, why wouldn’t the client be willing to settle the case for the same amount without incurring such a risk?
Because of their complexity, whether it is on behalf of a plaintiff or a defendant, some cases are very expensive to put on before a jury. Especially when you and your client believe you have a very strong case, you want to avoid making the cost of litigation an issue that overwhelms any discussion of the merits of the case.
There are two ways in which you can deal with this issue when it comes up at a mediation. The first way is to discuss the projected cost with your client, and try to come up with an estimated range on the cost. When the mediator makes an inquiry as to the cost, the mediator should be given the low estimate. Make sure that the number given is a credible one.
The other way this can be dealt with is simply not to answer the question. A very credible response can be “This issue is irrelevant. Unless we can achieve a reasonable settlement, it is our company’s position to try these type of cases.”
Again, the message is to avoid having your client get surprised at mediation by what may appear to be a collateral issue. These issues should be discussed beforehand with the client, and a strategy should then be worked out on how it will be dealt with at the mediation.
Working on the claims side, the worst thing that could happen is that we get surprised by defense counsel. For years and years, and hundreds of dollars of defense costs, we hear how defensible the case is, and then we get to the courthouse steps, and defense counsel is now surprised. Surprised by the Judge, surprised by a witness, surprised by a ruling, etc., and now they need lots and lots of money to settle the case.
So, I tell defense counsel the story of Batman and Robin. The one with Adam West and Burt Ward. Week after week, Batman and Robin finds the bad guys hiding in the plush warehouse by the river, start beating up the bad guys, and all of a sudden, the net comes flying down, trapping them, and in the beginning of the next week’s episode, they are tied up and about to be boiled to death in a vat of boiling oil.
This wouldn’t be so bad, but last week with the Joker, it was the net. The week before with Catwoman, it was the net. With the Riddler, it was again the net. The moral of the story is that you need to be prepared and watch out for the net!!
The story isn’t over. When Batman and Robin are tied up. Batman is cool and collected. Robin is screaming; “Holy deathtrap, Batman!!!” Why? Because if you look closely, Batman has a utility belt. Robin does not have a utility belt. Now, if you bring a boy wonder to fight battles, you give him a utility belt!!
In my world, defense counsel ends up being Robin, and they want me to go into my utility belt, and gets lots of money to settle a case on the courthouse steps. My one word of advice to counsel: you do not want to be Robin at the courthouse steps under any circumstances!!
ü Advise the client that you will have your own private sessions with the client after the mediator’s own private caucus.
After the opening presentations, the mediator will likely hold private sessions with the attorney and the client discussing the relevant issues of the case, and ultimately, the settlement position of the client. If the mediator asks for a number to take back to the other side, there is no time limit to provide a response, and the client should not feel compelled to give one instantaneously. The proper response given by the client is to excuse the mediator from the room with the explanation that the client wishes to discuss what was said and how to proceed with their attorney. Only after such a discussion has taken place, will the mediator then be called back in and advised of the new settlement position.
ü Advise and prepare the client for the possibility that the mediator will ask to meet with the client without you present.
This doesn’t happen all too often, but it is a possibility. This is something that the mediator may choose to do when the parties are close to an impasse. However, the client can choose to decline. Make the client aware of such a possibility, and decide beforehand on doing what the client fees most comfortable with.
ü Discuss the options that the client may have if it is determined that the two sides have mutually exclusive settlement ranges.
In some mediations, the mediator may learn that one side’s acceptable settlement range may be from A dollars to C dollars, and the other side has an acceptable settlement range from C dollars to E dollars. In this scenario, the likely mediated outcome will be that the parties settle at C dollars.
A very common scenario, however, is when one side comes in with an acceptable settlement range of A dollars to C dollars, and the other side comes in with an acceptable range of F dollars to G dollars. The two parties reach an impasse with one side at C and the other side at F.
The client should understand that the mediator, in all likelihood, will try in some way to break the impasse by suggesting to the parties “split their differences.” In the alternative, the mediator may suggest a creative settlement such as a high-low resolution that is based on the outcome of an outstanding motion, as one example.
The client should be prepared for this scenario as well and should have been prepared to make a decision on what to do when it occurs.
ü Determine what time the client would like the mediation to both start and end.
In many instances, the time when a mediation starts and ends is dictated by when all the parties can fly in to a particular city, and what time the parties need to catch a flight out. However, if all the parties are in the same city, the mediator will not hesitate to start the mediation early in the morning and if progress is being made, extend the mediation well into the night.
If your client is comfortable starting the mediation at 10:00A.M., the mediation should not start any earlier. If you client does not want to mediate past 6:00 P.M., this should be decided on and conveyed to the mediator before the mediation begins. The mediator and the other side will likely oblige.
The key is taking care of this issue before the mediation begins. Do not convey to the mediator at 5:58 P.M. that your client mediates only till 6:00P.M.. That will only get you charges of bad faith negotiating, and a mediator will not look favorably towards your client.
ü Make sure that your client understands and is able to communicate to the mediator the key issues and facts important to the client’s case.
Attorneys make the opening presentations. The clients generally can choose to make comments during the opening session, but they will most likely be somewhat limited. However, in the subsequent private caucuses that the mediator holds with each side, the mediator will have open and frank discussions of the case that will make it very hard for the client not to participate.
Sometimes it is important to the client to have the opportunity to speak and be heard by both the other side and a neutral. Speaking at the mediation may be seen as a substitute for “having one’s day in court.”
Regardless of what the attorney may have planned beforehand, the mediator will look to the client as the decision-maker, and as such, the mediator will want to know what the decision maker thinks about their own case. The attorney should prepare the client to clearly communicate to the mediator their case just as an attorney would prepare a client to be convincing to a jury. If the client is able to talk with conviction about the case, that conviction will be taken with the mediator when he or she goes to discuss the case with the opposing side.
Note that the mediator will try to get as much movement off of your settlement position by posing to your client the various risks associated with going to trial. While your client can indicate a willingness to be reasonable, the reasonableness should be based on an intelligent discussion of the gray areas of both the facts and the law, and not based on a perceived or created fear of a courtroom.
Even if the client desperately wants the case to settle, the client has to give the impression that he or she is ready to have a jury be the trier of the facts, if forced to take that option. If the mediator and the opposing side gets any sense of lack of resolve, or worse- desperation to settle, your client can end up paying by severely compromising their position, or even have the mediation fail and the case end up before a jury.
However, if there is a business relationship to protect, the client will not want to tell the mediator that they are ready to take the case up to the U.S. Supreme Court. Presenting the client as someone who is there to listen and be as impartial as possible in evaluating the claim is the best way to attempt to get good will from the other side. The appearance of fairness and reasonableness will appeal to the mediator, and the mediator will likely try to get the other side to be fair and reasonable as well.
If the client clearly is in the wrong, you should consider the option of conveying an apology of some sort to the other side. This will go far in diffusing the other side’s anger, and may allow them to be more reasonable as opposed to going out and looking for blood. In some situations, the other side rightfully can’t understand why it has taken all these years allegedly wasted litigating the dispute when your client should have been at the table the first day the dispute arose. (Of course, many times, it may be because of an unreasonable demand, or just a fear of showing weakness.) At the mediation session, the client can convey how the situation has changed, and why “now“ as opposed to “before” has become the appropriate time to resolve the dispute.
Conclusion
Since I handle numerous actions and the defense counsel defending them, I am always asking defense counsel about the resolution strategy. Too often, the response is we will go to mediation. Mediation, just by itself, is not just a destination, just like a trial is not a destination. The attorney will want to have a plan as to how they will try a case.
Or, counsel may add “We will see what the mediator says” which is essentially giving up control of the case. If you look at mediation as a destination, you will be disappointed when you get there because it will not get you where you want to go. As you can see from above, preparing for mediation should have a lot of thought put in to it. Those who are successful plan every step along the way to control the process and ultimately get the result that is satisfactory for the client.
