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Confessions of a Mediator

On Behalf of | Dec 5, 2018 | Firm News

Having mediated close to 1,000 cases in over 15 years, I have noticed that the lawyers who get the best settlements (either on the Plaintiff or Defendant side), have three things in common. First, they submit to me Mediation Position Statement Papers that put their best foot forward. Second, in addition to telling me, they show me. Finally, they ask me questions.

You would be surprised at how few lawyers submit anything to the mediator before mediation. Do this at your client’s expense.

If I am mediating a two-party case and one side submits to me a very well written Mediation Position Statement Paper setting forth the reasons why their side should win, and the other side gives me nothing, which side’s narrative do you think I am going to start the day with? That’s right – the party who took the time to put in writing the reasons their case is strong.

A well written Mediation Position Statement Paper gives me the ammunition I need to help get your case settled. If you give me nothing, I’ve got nothing to work with.

Second, lots of lawyers tell me how great their cases are. That’s all well and good; however, it’s even better if you can show me how great your case is. If the only thing I can do when I go into the other room is say, “The [Plaintiff’s] or [Defendant’s] attorney tells me …,” then I really have nothing. Chances are the other side is going to discount what you tell me.

They cannot discount, however, things that I can show them that will highlight the weaknesses in their case. Do you have great testimony from an expert? Then show me. Do you have medical records showing the Plaintiff lied to her doctors? Then show me. Do you have documents that show that a trucking company put a driver on the road that should have never been behind the wheel? Then show me.

Finally, some of the most successful lawyers that I mediate for spend most of the mediation asking me questions. And, frankly, that’s a really good idea.

Mediation is one of the few times that you are going to get to try to figure out your opponent’s case. Unfortunately, I think that many lawyers (myself included) tend to spend most of their time in mediation trying to convince the other side about how strong their case is. How about asking the mediator the things you need to be worried about concerning your case? Perhaps ask the mediator why the other side is taking a certain position or, ask the mediator what the other side is going to do in response to your great evidence/exhibit.

You’ll never know unless you ask.

As a mediator, I want to help settle your case. Providing me with a well written Mediation Position Statement Paper is a key first step. During mediation, show me how great your case is. Finally, use mediation as a time to learn rather than speak.

Good hunting!


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