how to prepare for mediation as an attorney

Tips for Attorneys-Preparing for Mediation

• In general, mediate at the earliest possible time to avoid wasting time and money, provided that the parties are ready to settle the case.
• Ensure that you are sufficiently informed to evaluate the case for settlement.
• Ensure that the key players have been identified on each side.

Full Answer

How to prepare for mediation?

How To Prepare For Mediation: The Mediator’s Check List Of Key Legal And Factual Issues. Preparing a Mediator’s Check List (“MCL”) of Key Legal and Factual Issues will assist the Mediator to focus on the issues she must master during the Mediation Process (“MP”) to facilitate a voluntary settlement of the dispute.

Should you hire a lawyer or a mediator for mediation?

While a good lawyer should impress the mediator (and opposing counsel) of the merits of the client’s case, the mediator is not going decide facts or the outcome. 5. Mediation Often Is the Best Time to Settle

What is the mediation process in a lawsuit?

The Mediation Process includes the totality of interactions among the Disputants, Counsel, indemnitors, insurers, and the Mediator. Mediation is a very inclusive process. It includes all forms of communication, oral and written, demonstrative, and the all important body language the parties’ exhibit during the entire MP.

What should I do to prepare for mediation?

Tips from a Mediator about how to prepare for the Mediation of your disputeIdentify your key interests in the dispute. ... Be ready to make the first offer. ... Reality check your case. ... Obtain an estimate of the costs of litigation. ... Say something at the plenary session.More items...•

What should you not say during mediation?

Don't rule out all opening statements because you have had bad experiences with them before. Think about whether there is anything either side could say that would be productive. Avoid saying alienating things, and say difficult things in the least alienating way possible.

What are the 3 basic principles of effective mediation?

This got me thinking, “Are there three P's of successful mediation?” While the mediations we conduct daily at Miles Mediation can be quite complex, the more I thought about it, the more I realized that my most successful clients follow the Three P's of Successful Mediation: Preparation, People and Patience.

What do you say at the beginning of a mediation?

I am your mediator today, which means that I am here to help you and to aid your efforts to resolve your conflict. To help you, I will stress three things: One, your voluntary participation. The mediation process exists for you benefit, which is why it can be voluntary.

What kind of questions do mediators ask?

Some of the questions that a mediator ought to ask counsel for the parties during the mediation include the following. What are your/your client's goals for this mediation? What would help you achieve your goals? What are the obstacles to resolving the dispute?

What are the 5 steps of mediation?

of the dispute.Stage One: Convening The Mediation.Stage Two: Opening Session.Stage Three: Communication.Stage Four: The Negotiation.Stage Five: Closure.

What types of skills are needed for effective mediation?

They form the basis of quality mediator training, and are essential for a thriving career in alternative dispute resolution.Establishing Transparency. ... Maintaining Neutrality. ... Managing Emotion. ... Building Trust & Rapport. ... Facilitating Collaboration. ... Steering Parties Toward Shared Goals. ... Deep Listening. ... Taking the Pulse.More items...•

What are some techniques for resolving conflict?

The Top 5 Conflict Resolution StrategiesDon't Ignore Conflict. ... Clarify What the Issue Is. ... Bring Involved Parties Together to Talk. ... Identify a Solution. ... Continue to Monitor and Follow Up on the Conflict.

What are the core tenets of mediation?

Self-Determination Self-determination is the cornerstone in the foundation of core values for mediation. It is the mediator's job to support the parties in making their own voluntary and informed decisions. Any decisions the parties make must be free from undue pressure from the mediator.

How do you carry out a mediation meeting?

Begin mediation by listening to each person's story separately. Next, bring them together to meet face-to-face. Allow them an equal chance to speak and to explain their perspective. Brainstorm mutually beneficial solutions and, once both parties settle on one, summarize the agreement.

How do you end a mediation?

In the situation where the parties have determined that the mediation is over, part of the mediator's obligation is to close the mediation in writing. A simple letter stating something to the effect that the parties have chosen to end the mediation on (date) and by this Notice the mediation is officially closed.

How do you write a good mediation statement?

By Mark A. RomanceBe upfront. Your first paragraph should tell the mediator who you represent, who the opponent is, summarize the claims and explain what is at stake. ... Provide a concise summary of the facts and claims. ... Summarize prior settlement discussions. ... Identify strengths and weaknesses. ... Bring it home.

What happens when both parties act fairly in a divorce?

When both parties act fairly in a divorce and resolve their own disputes, they end up having more assets to split between themselves. Many times parties spend more money in the process of litigation than they will gain from that which they are fighting for.

What is confidential mediation?

Mediation is generally confidential, meaning what is said in mediation by the parties cannot be brought in Court. This allows more freedom in negotiating during the mediation process and can facilitate an agreement between the parties. Prepare to genuinely LISTEN. Prepare to TALK. Prepare to SET ASIDE PERSONAL CONFLICTS.

How to make demands without explaining your reasoning?

Prepare proposal (s) for the other side. Be prepared to talk about your goals and explain WHY those goals are important to you . Making demands without explaining your reasoning does not elicit understanding and agreement, and will hinder a successful mediation with the other party.

What is the hidden truth about legal disputes?

The hidden truth about legal disputes: Settling disputes outside of litigation gives the parties a chance to better control their wishes and goals regarding the outcome of the dispute. In divorce and custody matters, NO one knows your family and situation better than you and your ex. When parties fail to agree, they must pay heavy attorney’s fees to proceed to litigation where a judge, who barely knows the family, will to his or her best to settle the dispute for them. Many times the parties get less than what they would have bargained for in mediation if they had settled the dispute themselves with a trained and impartial mediator.

How to deal with a divorced parent?

Some Things to Keep in Mind. 1 Children with parents involved in contentious custody or divorce litigation can develop emotional scars that they may never overcome or last well into adulthood. Reaching agreements in mediation and learning how to co-parent together provides the best situation possible for children. 2 Divorce litigation incurs heavy attorneys’ fees, which subtracts from the marital assets. That’s right, many times parties spend so much money on litigation that they significantly dwindle marital assets or funds that would have otherwise been available for the children. When both parties act fairly in a divorce and resolve their own disputes, they end up having more assets to split between themselves. Many times parties spend more money in the process of litigation than they will gain from that which they are fighting for. 3 There can be emotional closure and peace when parties resolve issues themselves in mediation. 4 Mediation is generally confidential, meaning what is said in mediation by the parties cannot be brought in Court. This allows more freedom in negotiating during the mediation process and can facilitate an agreement between the parties.

What is a mediation plan?

The plan will help you organize your preparation and deepen your understanding of the case. Your plan should consist of: a. Determining your goals and objectives. b. Identifying the true interests underlying the goals and objectives.

Why is there so much time wasted in mediation?

So much time is wasted in mediation because counsel choose not to share their views of the cases with each other in advance. Almost always, they end up sharing the briefs once they get into the mediation session.

Why is it important to know the other side's position?

It is tremendously valuable for counsel and parties to know the other side's position so they can research and prepare before getting to the mediation, save time, and get into the meat of the dispute and possible solutions. Just send confidential information to the mediator separately.

Can you win in mediation?

While you are advancing your interests, you should also be looking for opportunities to collaborate on solutions. You can win in mediation. But, as Henry Ford once said, "Before everything else, getting ready is the secret to success.".

What is the Mediation Process?

The Mediation Process involves many Mediator-directed and “individualized processes,” including discussions regarding the payment of the mediation fee, convening issues, scheduling hearings, telephone conferences, agreement on procedures to be followed during the MP, briefing schedules, confidentiality parameters, oral participation of Disputants, opening statements of Counsel and/or Disputants, procedure on private caucuses with Disputants and Counsel, conditions applicable to the delivery of documents, delays to obtain additional evidence or materials, delays to obtain settlement authority from indemnitors, intra-mediation negotiations with insurers, strategic disclosure of information, preparation of partial agreements and final settlement documents covering the entire dispute.

How does mediation differ from arbitration?

In Mediation the Disputants themselves impose the voluntary terms of settlement of their dispute, they control the MP, its timing and scope. The Disputants involved in the MP can’t be compelled to accept a settlement.

What is mediation in California?

California defines mediation as “a process in which a neutral person or persons facilitate communication between disputants to assist them in reaching a mutually acceptable agreement.” See, Code of Civil Procedure section 1775.1, Evidence Code section 1115 and Saeta v. Superior Court (2004) 117 Cal.App.4th 261, 269.

What is an evaluative mediator?

Evaluative is a hybrid of mediation and early neutral evaluation. In evaluative mediation, the mediator decides what the case is worth and advises how it should be settled. The evaluative mediator assumes the parties want and need the mediator to provide direction as to how and why the case should settle a certain way or for a certain sum. Evaluative mediation can be effective in a case where the neutral mediator has tried many similar cases or otherwise knows the case well.

What is MP in mediation?

The MP includes (in varying degrees depending on the mediation style or process agreed to by the Mediator, Counsel and Disputants), collaboration, cooperation, evaluation, facilita tion, negotiation and persuasi on. Special attention must be devoted to discussing with Counsel and Disputants on the appropriate use of confidential information disclosed to the Mediator. When and under what circumstances may this information be disclosed? At a critical juncture in the MP to move beyond an impasse? Make sure there is clear agreement on the terms and conditions governing the disclosure of confidential information by the Mediator.

Why are mediations delayed?

Many mediations are delayed because accurate information on important issues has not been reviewed, exchanged or verified by the decision makers. It is very common for expert reports, lost wages, and documents establishing the key elements of claims or defense or witness statements to be at issue during the course of the MP. If this information is disclosed for the first time in the Mediation session, decisions makers will want time to analyze and verify the accuracy of the information. Accurate information is the foundation for a successful mediation.

Why do you need to complete the MCL?

Also, by completing the MCL, the Mediator will be more confident in directing Counsel’s attention to the important legal and factual issues they need to review with the Disputants.

What to know before mediation?

Prior to the mediation, inform your client that the mediator will play devil’s advocate with both parties. As part of the mediation process, each party needs to know the strengths and weaknesses of their case. Compromise can only be accomplished if a party understands that he has something to lose.

What is the role of a mediator in a mediation?

However, it is part of the mediator’s job to drill down on claims and defenses when he is meeting with you and your client alone. It may appear to the inexperienced client that he is advocating and favoring the opposing party. Prior to the mediation, inform your client that the mediator will play devil’s advocate with both parties.

What is the purpose of mediation?

Unlike a trial, where the parties are entrenched in their positions, mediation calls for clients to listen and consider the arguments made by opposing counsel. Mediation is generally the first time your client meets opposing counsel.

Why is mediation important?

Because most court-ordered mediation requires all the parties (and insurers) to be present, it affords the best opportunity for settlement. With all the decision makers in the same building (or available by phone), issues that present sticking points may be resolved. While the process is long and frustrating, practitioners should resist the client’s urge to call an impasse. If crucial facts and discovery remain to be uncovered, the parties can usually agree under the rules to adjourn the mediation until a later date so the parties can complete discovery that will place the case in a better position of resolution.

What is the job of a mediator?

The mediator’s job is to find some common ground on which the parties will agree to settle. While a good lawyer should impress the mediator (and opposing counsel) of the merits of the client’s case, the mediator is not going decide facts or the outcome. 5. Mediation Often Is the Best Time to Settle.

What is a court ordered mediation?

With most states and some federal district courts adopted court-ordered mediation, the well-advised attorney will prepare the client for day of mediation. While insurance adjusters, debt collectors, and other well-seasoned clients may have had numerous encounters with the mediation process, most clients are unfamiliar with the process. It pays dividends to advise your client what to expect and what not to expect during the mediation.

What is mediation process?

There are many definitions of the mediation process. Perhaps one of the most accurate, certainly the simplest, is that it is "assisted negotiations". Recognizing that this definition does not provide new participants with much guidance on what to expect and how to prepare for mediation, please consider the following guiding principles, written both for parties and their representatives. We think that the more attention you pay to these principles, the greater the likelihood that your dispute will be resolved in a satisfying manner.

What happens at mediation and arbitration?

At mediation, the mediator will not impose a decision upon you, but you may have to make tough decisions relatively quickly in order to resolve the dispute. You may not get everything you want.

How to make the most of a dispute resolution process?

To make the most of any dispute resolution process you must be well-prepared to explain where you are "coming from" as well as be willing to deal with issues and questions raised by someone else. If you have time, background reading in the dispute resolution field may be helpful.

What is listening to mediation?

Listening is to mediation what location is to real estate. And focus on the problem, not on the people associated with it. Watch those tactics. Remember that mediation is not well-served by many tactics borrowed from litigation. Consider how you would react to what you are planning to do.

What is the image of the zone of agreement?

An image that assists in seeing the possibilities is "The Zone of Agreement", an elliptical shape with the parties at the right and left axes. The outcome (s) they negotiate are not a single fixed point within the zone; rather, depending on how the negotiation proceeds, outcomes are variable.

What is the key element of a successful mediation?

A key element of a successful mediation is for all parties to be as prepared as possible, which includes having a good understanding of the viewpoint of the other parties, which in turn enriches private deliberations aimed at reconciling as many interests as possible.

What is the importance of listening in mediation?

In such mediations, there usually will be a greater emphasis on listening, listening for more than simply information on the substantive aspects of the case. More emphasis is placed on listening for and trying to understand a more "mysterious" aspect of the dispute- the emotions that are often driving it forward.