Mediation Message No. 1


Intensive client preparation for mediation is frequently overlooked. While attorneys would not bring a client to a deposition or trial without going through the possible subject matter, questions and exhibits to be covered as well as discussing how to answer questions, the tactics and methods of opposing counsel and the policies of the trial judge, there seems to be a more relaxed attitude toward client preparation when mediation is concerned.

Although mediation is hardly comparable to depositions and trials, counsel can still benefit from advance work with the client, including a discussion of the facts and theory of the case and the goals of the particular mediation. An informed client will be more confident when facing the opposing party. Additionally, the mediator will make an assessment of the case, in part, by how the client responds to questions during private caucuses. Quite frequently, I have observed litigants to be confused or unknowledgeable about material facts or the purpose of the impending trial. On the other hand, a well prepared client presents a more credible witness. And a more credible witness is one of the factors a mediator will consider in evaluating the ultimate outcome and value of the case.

Copyright, Michael D. Marcus, copyright April 2003

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