Mediation Message No. 15

Questions to Consider Before Commencing a Mediation

Effective mediation preparation includes asking yourself questions about the status of your own case, the opponent’s case, opposing counsel and the mediator. Specifically, the following inquiries should be covered:

What are the strengths of your case? Certainly, you will want to advise the opposition, if there is a joint caucus, and/or the mediator about all of the factual and legal factors why you shall prevail at a future trial and are, therefore, entitled to a favorable settlement.

What are the weaknesses of your case? Almost as important as being able to identify your case’s strengths is also knowing its weaknesses. As an example, is there a problem of proving or disproving damages or is one of the witnesses not credible? Having gone through such an analysis, you will be prepared to intelligently discuss and even counter or minimize the mediator’s comments about particular problem areas.

What is your assessment of opposing counsel? Before the mediation, you should have formed a good idea about the strengths and weaknesses of opposing counsel. Is this person experienced, knowledgeable and prepared or flying by the seat of his or pants, blithely ignorant of what it will take to try this case? Such information is invaluable in putting a value on your case and assessing the risks of going to trial.

What do you know about the mediator? Prepared counsel do not go to trial without learning about the judge who shall preside over the case. Similarly, inquire about your mediator’s legal background, including his or her experience in the area you are about to discuss, and what style or approach that person brings to the mediation process.

What is your bottom line? You most probably have an opening offer or demand in mind but have you also thought about how far you and your client are prepared to move before you can go no further? Such forethought will make the negotiation process much easier.

What is the worst case scenario if the case does not settle? While there is nothing wrong with being confident about your case, think ahead to what will have to be done to try the matter if it is not resolved at mediation and, more importantly, realistically evaluate the chances of achieving your goals at trial.

Copyright, Michael D. Marcus, June 2004

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