Welcome back to my four-part series on preparing for success at mediation. The prior two articles focused on the importance of preparing your case file and then preparing your client. You can revisit those articles at jacksonvillemediator.com for the complete analyses.
We now shift our focus to preparing your counterpart on the other side of the case.
While I recognize that you may not share it, my bias is for disclosure and transparency.
Your strategic decisions on this issue will likely be shaped by your confidence in the fruitfulness of the mediation. Disclose more if you expect settlement. Disclose less if you expect impasse.
I favor what advances settlement and write this article with that agenda.
Generally, an opposing counsel who knows your constraints, needs and case is better able to work toward resolution. To that end, prepare them by explaining your client’s case review process, presenting your case and planning for a mutually productive joint session.
Corporations, government entities and insurance carriers often have established protocols for case review and assessment which usually occur well before the scheduled mediation conference.
If you represent a client like this, share its valuation protocols with opposing counsel.
Individuals and small businesses are mostly autonomous at mediation, able to adjust their monetary settlement goals in real time.
Not so with institutional entities. While the representative can legally bind the party to an agreement (i.e., has settlement authority), he is constrained by parameters often set by the case review process completed weeks earlier. Powerful evidence first revealed at or shortly before mediation is often of no impact because its disclosure is too late.
If your mediation goal is settlement, tell opposing counsel what your client needs and when it needs them.
Share these insights early, perhaps even at the case onset, to ensure that you get relevant information for your client’s pre-mediation case valuation.
Present your case in advance. I lament the rarity of mediation statements, despite court orders requiring that they be given to both the mediator and opposing counsel. Those who don’t comply are squandering several benefits.
Creating a mediation statement helps you gain mastery over your file, knowing its strengths, weaknesses and the evidence you possess, lack or must overcome.
Furthermore, timely sharing your mediation statement helps the other side to value the case properly, bolsters your client’s trust and confidence in you and educates your mediator before the conference.
Whether due to time management lapses, client directives or budget constraints, the decision to forsake mediation statements is penny wise but pound foolish.
Comply with the court order and present your case in advance, as was the norm in the 1900s when I started my legal career.
Plan for a mutually productive joint session. Will you have an audio/visual presentation? Do you foresee issues with both parties sharing space in the joint session? Are you concerned that opposing counsel’s remarks may undo the progress you’ve made in getting your client into a productive state of mind?
These and similar issues should be discussed with your counterpart.
Much can be mutually gained from a well executed joint session that balances advocacy and respect.
Joint session may be the last opportunity you have to speak to the other side’s decision makers. Maximize the potential of that moment by preplanning with opposing counsel.
As with most endeavors, preparation is usually worth the time it takes. Preparing your case file, your client decision maker and your opposing counsel will greatly aid your success at mediation.
There remains one last preparation focus, which I’ll discuss in my next article.
Blane McCarthy is a full-time certified circuit mediator with Miles Mediation & Arbitration and was the 2023-24 president of the Jacksonville Bar Association.