They say that 95% of all lawsuits settle, many at mediation. To settle your cases at mediation, consider the following:
1. Don't rush into mediation. For a mediation to be fruitful, the parties must have throughly investigated their case and have conducted sufficient discovery. If they have not, they may go into mediation with unreasonable expectations. It is ill-advised to proceed with mediation until the parties have done their due diligence.
2. Explain the mediation process to your client. Explain to your client how mediation works, what to expect at mediation and what you need to do to properly prepare the case for mediation.
3. Choose the right mediator. Choose a mediator that both parties respect and trust. Seek input from your client when choosing a mediator. Also, select a mediator who has handled cases similar to yours.
4. Have a game plan. Develop a game plan for mediation. What do you hope to achieve at mediation? What would be a good result for your client? Decide what arguments you will make at mediation and gather the relevant information or conduct the necessary discovery that will support those arguments.
5. Inform your client of the pros and cons of his case.Before going to mediation, explain to your client the strengths and weaknesses of his case. Mediations are successful when each side has realistic expectations of what the potential outcome at trial could be. You are not doing your client any favors by giving him an inflated view of what his case is worth. Also, let him know what the legal costs will be through trial and the potential result at trial if the case does not settle at mediation.
6. Do your homework. Learn everything you can about our case and everything about the other side's case. Try your best not to be surprised by your opponent at mediation.
7. Treat mediation like trial.In many cases, mediation has taken the place of trial. Treat it that way. Go through the entire file, including all the discovery responses, relevant documents, witness statements and depositions. Compile the documents and testimony that bolster your case and be prepared to discuss them at mediation.
8. Prepare a closing argument. Generally at mediation, each side makes an opening statement before the parties break to caucus. Instead of making a generic opening statement, I recommend making the closing argument you intend to present at trial, including using any exhibits you intend to use at trial. This way, the other side sees you are prepared to try the case if need be.
9. Gather all the necessary documents which support your case. Before you go to mediation, make sure you have gathered all the necessary documents that support your case. For example, if you are a plaintiff in a personal injury case, make sure you have all the relevant medical records and medical bills.
10. Think multimedia. Consider preparing a multimedia presentation at the mediation. To some, this may mean playing a surveillance video or portions of video depositions. To others, it may mean preparing a power point presentation. This shows that you are ready to put on a show for the jury if need be.
11. Prepare a mediation report for the mediator. Take the time to prepare a mediation report for the mediator. Along with the report, include any relevant documents and copies of any exhibits you intend to use at the mediation.
12. Prepare a mediation binder. Prepare a binder with a table of contents, that includes all the relevant documents in your case which you intend to address at mediation. Include in the binder excerpts from deposition transcripts, photos, relevant trial orders, etc. you will use this binder as a reference tool during the mediation.
13. Think win-win. To make the mediation fruitful, find ways to settle the case so that both sides win. If you try to force a one-sided settlement down the other side's throat, you will find that settlement will be difficult to achieve.
14. Know your bottom line. Before the mediation, know what your bottom line is and be prepared to walk away if the other side doesn't want to meet it.
15. Be professional. Don't let the mediation deteriorate into a slugfest. Always keep your cool and act professionally.
16. Bring a draft release to the mediation. Bring a draft release to the mediation, so if the parties settle, the terms of the release can be resolved right there and then. A good sample release can be found on the web page for the Trial Lawyers Section of the Florida Bar at www.flatls.org.
To make your next mediation a fruitful one, take the time to prepare. Often preparation makes the difference between hitting an impasse and brokering a settlement.
Read more on Frank Ramos' blog, Tips for Young Lawyers. Francisco "Frank" Ramos, Jr. is the administrative partner at Clarke Silverglate in Miami, Florida, where he practices in the areas of products liability, employment, commercial litigation, medical malpractice, class actions and general liability.
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