MEDIATORS’ WISH LISTS I wrote about “Mediator’s Pet Peeves” six years ago in Mediation Message no. 75. Because of the passage of time, I’ve revisited the subject with a more positive approach, thus pet peeves have become a wish list. I wish mediation briefs were filed timely. Having once been a trial lawyer, I know the practice is demanding and there are never enough hours in the day to complete every legal obligation. Nonetheless, please submit…
CONSTRUCTING A BRACKET AT MEDIATION Although brackets are an effective device for mediation negotiations (see Mediation Message no. 80 for a complete discussion of the process), some attorneys hesitate to use them because they’re not experienced composing a bracket. To allay those misgivings, consider the following fool-proof method for easily constructing brackets. Start by picking a mid-point for the bracket. The mid-point, which every opposing lawyer looks at, is the average of the two opposite…
“THE ROOM WHERE IT HAPPENS” The title of this Mediation Message comes from a song from the musical “Hamilton,” where Aaron Burr complains that no one knows what happened when Hamilton, Jefferson and Madison got together in a room and agreed to Hamilton’s plan to have the national government take over and pay the states’ debts, while Jefferson and Madison obtained the national capital (the District of Columbia) for the South. Burr then sings, “No…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 126 EXCHANGE MEDIATION BRIEFS There are no compelling reasons for opposing counsel not to exchange mediation briefs. (Okay, there might be one, and I’ll get to that shortly.) Because most attorneys don’t share their mediation papers with the other side and, with the demise of the joint caucus at mediation, unless the mediation takes place after substantial discovery has commenced, the parties don’t know their opponents’ factual and legal…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 121 AN UNUSUAL VARIATION ON THE JOINT CAUCUS In January 2013, I looked at the evolution of the joint caucus from when I started as a mediator to the present. (Mediation Message no. 83.) Little has changed since then; if anything, a joint caucus with all of the parties and attorneys present at the beginning of a mediation is now even more anachronistic. The one exception to not having…
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 111 A BLUEPRINT FOR SUCCESSFUL MEDIATIONS Successful mediations don’t happen by accident; they are the result of a number of recognized principles, all of which come under the rubric of preparation. Clients have been prepared. Attorneys talked to their clients about the purpose of mediation, the facts and theory of their respective cases and how to respond, if permitted by the attorneys, to the mediator’s questions. Timely and interesting…
By Michael Marcus Uncategorized
MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 53 WHY ARE WE HERE? The sine qua non for an effective mediation, as I’ve mentioned many times, is preparation. But good faith and flexibility by the parties, although not as important, are also integral to resolving cases. One aspect of good faith by parties in mediations is that they shall be willing to consider all reasonable options and arguments presented by the mediator. Flexibility goes hand-in-hand with good…
TIMING IS EVERYTHING The timing of a mediation can be almost as important as the facts of the case. For example, it is generally accepted that mediation immediately before trial results in a settlement because of concerns about additional fees and costs and the impending uncertainty of trial. So, rather than wait for the court to order or suggest that you mediate, arrange for that process when it is most advantageous to your client. Mediate…
WHATEVER WORKS There are no absolutes as to how a mediation should be conducted – the only caveat is that it should be managed ethically, which includes that the principle of confidentially be strictly followed. Otherwise, whatever works is the appropriate mantra. A facilitative, easy going approach might be called for in one instance, an aggressive, evaluative style in another and a combination of the two methods may be the most effective in a third…
MEDIATION “SIDEBARS” In the courtroom, a sidebar conference between attorneys and the judge takes place outside the earshot of the jury and, by necessity, the parties. At mediation, the informal conference or sidebar is a discussion between the mediator and one or all of the attorneys outside the presence of the client or clients. It is not unusual for an attorney to request a private conference with the mediator before the mediation has begun to…