Mediation is popular with business people and their counsel
because it is a low risk process with a remarkably high success
rate. It is far less expensive than trial since it usually takes
only a day or two and avoids costly discovery and employee
downtime. Even more importantly, mediation allows participants to
avoid the risk of going to trial and sometimes offers a chance to
preserve business relationships. Participants appreciate the
fact that the process is confidential so that their business
problems and intellectual property are shielded and that parties
maintain some control of the outcome rather than perhaps live with
an adverse judgment.
Some keys to mediation success:
Submit a brief that outlines the
facts of the case and the applicable law. Focus on the key issues,
including damages information. While lengthy legal arguments may be
important at trial, they are not usually the basis for a mediated
settlement. You do not need to attach your Complaint or Motion for
Summary Judgment, but instead include some thoughts about possible
resolution. Mediation is about cutting a business deal.
Exchange briefs. Mediation is
enhanced when participants are aware of the arguments of their
adversaries and have had a chance to consider a response. Include
information in the briefs that might help the decision-maker on the
opposing side to understand your client's point of view and
possibly reevaluate their settlement position. Exchanging briefs
helps the parties prepare to move promptly into meaningful
There may be confidential information
that you do not want to share, such as your client's business
goals, your perceptions of obstacles to settlement, or preliminary
thoughts about a business resolution. Be candid with the mediator.
Send that information in a side letter for the mediator's eyes
only or request a call to discuss your concerns in private. There
is no bar to ex partecommunication with a mediator.
Participate in a pre-mediation call.
You may request the mediator's help with an informal exchange
of information or discuss some ground rules. An experienced
mediator will help design a process tailored to your case.
Discuss a range of settlement options
with your client. Consider how the case might look to the opposing
side. There may be new information presented that will cause your
client to re-evaluate. Or you might consider options that include
offering something other than money. Sometimes parties come to an
unexpected resolution such as an agreement for one company to
purchase the other. Stay flexible and be willing to take a fresh
look at the dispute. And keep in mind the difference between
adversarial litigation advocacy and deal-oriented mediation
Invite the decision-makers needed to
close the deal. In order to streamline the process, select those
who can speak in terms of issues and litigation risks while keeping
emotions under control. Do not rely on attendance by phone.
Mediation is a fluid process and a lot of information will come out
as the day proceeds. A decision-maker who is not present will not
be privy to the subtleties of important discussions and may miss
important openings for settlement.
A mediated resolution is often a business deal that clients find
to be superior to any remedy that might have been available at
trial. Make the most of this mediation opportunity!
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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