Alternative Dispute Resolution

Mediation Considerations for Civil Litigation Matters

April 2009

By Charles P. Bauer*

1. Consider that risk analysis is the name of the game.

2. Consider that multi-party mediations are usually more complex and delicate than 2 party mediations.

3. Consider having all decision-makers in the mediation rooms, including insurance representatives, company representatives, significant others, etc., — not on cell phones.

4. Consider who the decision-makers are for the other side; be prepared to provide them with needed information / documentation during the mediation to settle the case.

5. Communicate with opposing counsel before mediation to determine what, if any, information / documentation is needed for each side to resolve the case at mediation.

6. Consider the style and personality of opposing counsel, decision-makers and clients; tailor your mediation presentation accordingly.

7. Know the up-to-date status of the demand and offer before entering the mediation.

8. Know the tax implications of your mediation settlement; or have someone available during the mediation to answer tax questions.

9. Know — and have a handle on — all lien issues before and during the mediation.

10. Don’t set a “bottom line” before the mediation.

11. Consider participating in pre-mediation telephone conferences with the mediator.

12. Consider filing confidential mediation statements to the mediator only prior to the mediation.

13. Analyze, outline, draft and submit effective mediation statements with appropriate attachments to the mediator and parties.

14. Consider what motivates the decision makers in both rooms.

15. Listen and learn the other parties' points during the joint and private sessions and respond appropriately.

16. Do not throw “gasoline on the fire” during the opening joint session.

17. Know the law, facts, jurisdiction, judges and procedures relevant to your case.

18. Consider that there are “signals, rhythms and flow” to mediations.

19. Consider that — sometimes — there are “elephants in the room.”

20. Be creative and "think outside the box" before and during the mediation.

21. Consider bringing new information to the mediation and use it at appropriate times during the mediation.

22. Consider bringing all persuasive documents to the mediation — “don’t leave home without it.”

23. Consider having your client talk during the joint mediation session.

24. Anticipate “ups and downs” during the negotiation process; be prepared to work through negotiation problems.

25. Be prepared to stay in the mediation longer than you expect — have patience and endurance — be prepared to work through road blocks and obstacles.

26. Be prepared to complete and execute a Memorandum of Understanding (MOU) or Settlement Agreement and Release at the end of the mediation.

* Charles P. Bauer is licensed to practice in New Hampshire.

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Charlie Bauer
You may contact
Charlie Bauer at 603-545-3651.

See also:
Employment Mediation Best Practices