Wednesday, August 13

Gaming the mediator

Tom Matychowiak reports at the Arbitrators and Mediators Yahoo Group that the latest California Lawyer has an article Managing Expectations in Mediation by Dan Stanford, a malpractice lawer from San Diego. It concludes:

'... Once you know who the mediator will be, always contact him or her and try to meet in advance of the mediation. If that is not possible, have a pre-mediation telephone conference. Focus only on the strengths of your case: If you represent a plaintiff, talk about the clear liability evidence, significant damages, your client's expectations of a big award, problems with the credibility of the defendant, and your willingness to try the case. Set the bar high. If you represent a defendant, focus on the strengths of your defense, including technical defenses, any persuasive evidence, and any credibility issues the plaintiff might have. Set the bar low. From both perspectives, provide the mediator with everything that serves your interests.

At the mediation, continue this effort and work even harder at it. If the other side convinces the mediator that you will accept a lesser result than advertised, your chance of success will plummet (and you may end up facing a very unhappy client). On the other hand, if you convince the mediator that your adversary is willing to give more to settle than is on the table, you may well be on the way to having a successful outcome and a satisfied client.

2 comments:

Tammy Lenski, Mediator Tech said...

Now there's someone who's missing -- or fundamentally wants to challenge -- the concept. Still thinks "win" above all else. I'm glad I don't take clients like that anymore, as I think I'd be getting surly about it by now.

John Lassey said...

Good advice --- if one assumes that the mediator is dumber than a bale of hay!