I. WHY MEDIATION WORKS

 

Premise: In most disputes, particularly relationship based disputes, there is a significant desire by disputants to be heard and understood by the other side. This is especially true in cases that have the most realistic chances of settlement.

 

Premise: Mediation properly conducted provides both sides with the opportunity to be heard and understood by each other.

 

Premise: When parties believe they have been heard and understood by the other side, they feel empowered, they become much more flexible, more willing to compromise, and more willing to put the matter behind them.

 

II. WHAT WORKS WELL AT MEDIATION [ The Ten Keys]

 

1. Remember mediation is a forum of negotiation, more than it is an adversarial proceeding.

 

2. Listen well, emphatically, and empathetically. Earnest listening engenders understanding and flexibility from the other side.

 

3. Be able to articulate the other sides view of the case. You will invariably learn something otherwise missed in discovery.

 

4. Be prepared and organized, but not dogmatic.

 

5. A litigation risk analysis is an extremely useful analysis and preparation tool. Consider what is new information at mediation and revise your litigation risk analysis accordingly.

 

6.  Get honest assessment from mediator.

 

7.  Avoid "preening" at mediation. Remember the primary audience after the opening statement is the other side. Your client and the other side are the decision makers.

 

8. Remain open minded. Staying flexible makes you more agile at mediation to pursue client?s best interests, and encourages good will and flexibility from the other side.

 

9.  Communicate with the mediator about client control issues and whether you are looking for help from the mediator with such issues.

 

10. Be responsive to what you are hearing. This makes you a more effective negotiator. It also encourages the other side to be more responsive to you.

 

The foregoing points are the most common practices of the greatest trial lawyers and the greatest negotiators I have worked with over the years. They are also the practices deemed most effective by the outstanding lawyers and negotiators I have spoken with about negotiation techniques.

 

III. ZEN MEDIATION APPROACH

 

Goal:

Have each party be heard and understood by the other. If both parties are heard and understood by the other, every case that has a reasonable chance of resolving will resolve.

 

IV. MAXIMIZE OPTIONS & FUTURE STREAM OF BUSINESS- (For Outside counsel)

 

1. Efficiently handled discovery and litigation will result in stream of business.