Ten Cardinal Rules to Live By When Mediating Your Case

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These days, almost every lawsuit is the subject of mediation at some point. It always pays to have a roadmap for where you want to go with your mediation. Here are 10 cardinal rules to live by when your case is selected for mediation.

  1. Always be prepared. Memorize the procedural history, statement of facts, causes of action and core affirmative defenses. Create an impression with the mediator that you are the source of authority in the case. This will help you establish credibility with the mediator.
  2. Agree to your adversary’s choice of mediator if he/she is competent. Your goal is to persuade the mediator and if you do, his statements to the adversary will carry more weight and be more effective, if the mediator is someone your adversary picked.
  3. Don’t be afraid to direct the mediator. If the mediator tells you that you have a strong case, ask him/her if they would go into the adversary’s room and say the same thing.
  4. Be candid with the mediator about the weaknesses in your case but make sure you tell him/her it is not to be shared with the other side.
  5. Don’t lie to the mediator about your settlement authority. If you are asked for your bottom line for that day, either say you can’t disclose that or disclose it but say it can’t be disclosed to the other side. It is better to give such information to the mediator. It will make you more credible.
  6. Submit a detailed mediation statement to the mediator and share it with your adversary. Even if you don’t settle, airing out how you will prove your case will likely cause the adversary to respond and try to poke holes in your case. This essentially is a free trial run of your case without cost and you can always go back to your office and change approach/tactics if your adversary thinks of something you did not. At the very least, the mediator will try to poke holes in your case, again to your benefit.
  7. Be careful about moving too far in your number during mediation at any point in time. If you don’t settle, your last number will be the new “floor” or “ceiling” in the case. Many cases settle even after a failed mediation.
  8. Drop the saber rattling. This is the time to give your adversary and mediator your unvarnished view of the entire case. It is not the time to embarrass or one-up your adversary.
  9. If asked by the mediator to give an opening statement, present one that is more like a dinner conversation as opposed to all the bells and whistles that come with an opening statement before a jury. You don’t want the adversary threatening to walk out. Your performance is not the issue in a mediation.
  10. Never walk out. The first party to walk out of a mediation loses. Mediation is a process that does not necessarily end at the conclusion of a failed mediation.