ANALYZE DISPUTE FROM THE OTHER SIDE

1. WHO NEEDS TO BE PERSUADED?
   • Opposing counsel?
   • The Claimant? The Claimant's spouse, friend?
   • The Insurance representative?
   • The Corporate representative?
   • The Human Resources representative?
   • Your own client?

2. WHAT ARE THE REAL INTERESTS OF THE OTHER SIDE?
   • Only money?
   • Continued employment or re-instatement?
   • A "moral" victory or revenge?
   • Avoiding the aggravation of continued litigation?
   • Avoiding the cost of continued litigation?
   • Avoiding potentially embarrassing or damaging discovery?
   • Avoiding Trial?

3. WILL THE KEY PERSON(S) BE PRESENT AT THE MEDIATION?
   • The lead attorney or an associate?
   • An insurance representative with full knowledge of the case?
   • Will the corporate representative be able to make a unilateral decision or does he/she have to report to a superior or board? (Consider having a superior also attend by telephone, if agreeable)
   • Is there someone else not directly involved or present really calling the shots?
   • Should the corporate representative be the actual "offending" party? Should the "offending" party participate in the Mediation?

4. WHAT COULD BE THE POTENTIAL IMPACT OF CERTAIN ARGUMENTS ON THE OTHER SIDE?
   • A potential for punitive damages?
   • The possibility of an uncollectible Judgment?
   • The possibility/impossibility of re-instatement?
   • The threat of an Appeal in case of an adverse judgment?
   • The lack of credibility of the other side?
   • The lack of credibility of certain witnesses?
   • Are certain arguments better communicated through the Mediator?
   • What is the best timing for certain arguments?

PREPARATION FOR MEDIATION

1. WHAT SHOULD YOU TAKE TO THE MEDIATION?
   • Key documents, photos, reports and diagrams
   • Key depositions (pertinent excerpts copied)
   • Key pleadings/Answers to Interrogatories
   • A record of prior settlement negotiations

2. HOW BEST TO PREPARE YOUR CLIENT FOR MEDIATION?
   • Identify, list and discuss your strengths and weaknesses - and those of the other side.
   • Outline and discuss costs to date and probable costs to continue litigation to trial.
   • Outline and discuss information you have and don't have about your case and the other side.
   • Discuss and analyze settlement options before Mediation with your client.
   • Prepare your client to "negotiate" and discuss potential negotiation stratigies.
   • Discuss using the "flexibility" of Mediation-Speaking alone with the Mediator, alone with other counsel, letting the parties speak alone with or without the Mediator (with permission of counsel)

These are just a few considerations to be analyzed BEFORE and DURING the mediation. Stay ALERT to the messages from the other side, both direct and indirect, and USE THE MEDIATOR to assist keeping you and the other side on the best PERSUATION TRACK.

ANALYZE "TIMING" OF THE MEDIATION

1. AFTER INITIAL INVESTIGATION AND BEFORE PLEADINGS ARE FILED?
   • Would a frank discussion of the issues facilitate early and reasonable resolution?
   • What will be the impact of translating the dispute into the necessary allegations of the Complaint or Answer? eg. Allegations of fraud, misrepresentation, etc.?
   • Would an early mediation facilitate and streamline necessary discovery with an eye toward a later continuation?
   • Would a suggestion of mediation be interpreted as a sign of weakness which could adversely affect later negotiations - and, can that be avoided?

2. AFTER INITIAL DISCOVERY AND BEFORE TRIAL PREPARATION?
   • Do you and the other side have most of the basics you need to effectively persuade the other side?
   • Will your costs of preparing for trial escalate substantially, or are you essentially ready-to-go with a minimum of cost and time?
   • What about the costs and time for the other side?
   • Will the other side be easier to persuade as trial looms?

3. AFTER TRIAL PREPARATION AND BEFORE TRIAL?
   • Is the other side really ready for battle?
   • Are continued costs a factor?
   • How do the risks of loss compare to continued costs?

4. SHOULD I WAIT FOR A COURT ORDER TO MEDIATE?
   • Can you get the appropriate mediator to fit your time schedule?
   • Will a future mediation date serve to focus needed attention to the file to complete necessary discovery?
   • What if the other side won't agree without a court order?

Taking a PRO-ACTIVE APPROACH to Mediation in your case insures potential resolution of the dispute to the satisfaction of your client (who is potentially a source for future business) in a cost and time effective manner. It allows settlement options to be explored as early as practcal in a controlled environment and under conditions conducive to settlement with the full participation and approval of your client.

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