Ed Sikorski
Most problems encountered in any endeavor come from lack of preparation. In the context of mediated case resolution, there are two separate but inter-related and inter-dependent preparation activities simultaneously in play. The first is counsel preparation. The second is client preparation. Failure to do either or both will result in almost certain disaster. Any attempt to "just wing it" will meet with the same consequences as Icarus.
In short, there are six components of "counsel preparation."
First: Select a mediator with subject matter knowledge. The ABA Section of Dispute Resolution Task Force on Mediation Quality found that "to a very substantial degree users endorsed the importance of subject matter knowledge" (2008a, p. 9).
Depending on the nature of the case, for a mediator to come up with the right questions to facilitate resolution may well require that the mediator have significant experience in a particular field. Mediators with knowledge and experience in that area can not only provide those questions, but do so with the respect of the parties, based on their experience and expertise. A key hallmark of an effective mediator is the ability to hear what is not being said in order to cut through to the real motivating issues.
Second: Identify and require the presence of the real decision maker(s). If the real decision maker(s) is not a participant, the entire process becomes meaningless-an exercise in futility-and a waste of time and money.
Third: Provide and require adequate exchange of information. The entire mediation model is predicated on all of the parties having all of the same information. If all of the cards and supporting documents are not "on the table," it is unrealistic to think that there can be a satisfactory result or at least resolution on terms acceptable to all.
Adequate information means sufficient information to make an informed settlement decision. If one withholds information, one must answer the question whether the withheld information adds to or detracts from the legitimacy of the claim or defense during the mediation process. The mediation process is, after all, an opportunity to convince the other side of the legitimacy of the claim and the value of the case.
Fourth: Prepare and effective mediation brief. Mediation briefs are not repaginated motions for summary judgment. Mediation briefs are an opportunity to persuade the other side by presenting facts, arguments, and summaries evidence in visually embedded form without the constraints of the formal rules of evidence that make the opposition reluctant to proceed to trial and willing to consider why resolution on your suggested terms is in their best interest.
Do everything in your power to objectify the claim, position, or defense. Make the content easy and simple to understand. Scientific and psychological studies advise that the most persuasive presentations are those that can be readily understood, grasped, and adopted by a sixth grade elementary school student.
Fifth: Make an objective case valuation and risk analysis. A risk assessment protocol is an explicit list of the assumptions and calculations that underlie the value derived. Support this protocol with Jury Verdict Research and decision tree probability analysis of the possible litigation outcomes. See "Decision Analysis as a Mediator's Tool" David P. Hoffer; Harvard Negotiation Law Review, 1:113 (Spring 1996).
Sixth: Develop and stick to a negotiating plan. Negotiation communications that start with a number higher (plaintiff) or lower (defendant) than the parties own case evaluations are inviting emotional reactive responses that shut down the process and lead to impasse for no good reason. All that will be accomplished is an argument between two or more sides that have traded an organized cognitive process for a war of attrition.
Start with a plan beginning with your "best day in court" and systematically moving through your negotiating range to your walk-away number.
Stick with the plan and stay in control of an otherwise reactive process calculated to be self-defeating. As in any military or sporting contest, victory is often achieved because of the wounds inflicted by the other side upon itself. See "Civil Negotiations & Mediations" by Nancy Hudgins "Scripting Your Moves" (March 5, 2012).
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Edmund J. Sikorski Jr., J.D. is a member of the Michigan Bar (Emeritus), an approved civil mediator in Washtenaw County, and a Florida Supreme Court Certified Circuit Civil and Appellate Mediator. He can be reached at edsikorski3@gmail.com.
Published: Mon, Feb 06, 2017
