The Trial Practice Tips Blog

Mediation Tips from the Pros

In the April issue of Trial magazine, there's a good article about mediation titled "What mediators really want to hear." It's based on interviews with veteran mediators Judith Meyer, John Leo Wagner, and Joe Epstein, and was written by the editorial staff at Trial.

Here's some of what you'll learn if you can get your hands on a copy, which unfortunately isn't available online to non-subscribers:

• Powerpoint and video presentations are often "boring and pedantic." Even if not, they are often so emotionally overwrought that they irritate the other side into unnecessarily stonewalling. If you're going to make a detailed presentation, take care. On the other hand, photographs and chronologies often help a mediator quickly understand the facts.
• Try to view the process "as a joint problem requiring a solution" and not a "competition to win or lose."
• Make sure you talk to your client about the objective of the mediation. The client should be at the mediation and should be given access to the mediator. Generally, you should let the client speak if the client wants to speak.
• When you're negotiating, don't be a "one-trick pony." That's a lawyer who is always using the same negotiating tactic, mistaking it for something very dramatic: walking out, then returning and walking out again; or drawing a firm line in the sand and promising never to cross it, only to cross it and replace it with another non-negotiable line.

There's much more in the article, which is recommended to both plaintiff and defense lawyers.

Train to Be a Mediator

I received the following notice from St. Louis University School of Law:

Saint Louis University School of Law will present a moderately priced mediation training on January 7 and 8, 13, 14, and 16, 2006.  Attorney and mediator Rebecca Magruder will present the training.  Participants can choose between a 16-hour session which satisfies Missouri Supreme Court Rule 17, or a 40-hour training which satisfies both Rule 17 and Rule 88.  The program qualifies for CLE credits.

For more information, contact Janet Farris at the Law School at 977-7266.

Another Class Action/Arbitration Clause Decision

In Ragan v. AT&T, No. 5-03-0038 (3/1/05), the Fifth District enforced an arbitration clause and held that a provision prohibiting class actions was not unconscionable on its face under New York law.

The case is another in a recent line of cases dealing with arbitration clauses and class actions.

Related Posts: Recommended Reading About Arbitration Clauses: Bess v. Direct TV; and Those Pesky Arbitration Clauses.

Mediation: Common Mistakes to Avoid

In keeping with yesterday's theme--the rise of alternative dispute resolution-- here's a list of five common mediation mistakes from an article titled Common Mistakes in Mediation Advocacy:

• Not being prepared;
• Not preparing the client;
• Failing to make it clear that you plan to go to trial;
• Wasting your opening statement; and
• Failing to have full settlement authority.

The article is unsigned, but all the points are good ones. Recommended.

A Comprehensive Article on ADR

These days, when alternative dispute resolution is more popular than ever before, is pays for you to have a thorough understanding of the ways in which you can make ADR work for your clients. An interesting, comprehensive analysis of the pros and cons of ADR can be found in an article by Anthony J. Mercorella titled "Alternative Dispute Resolution: Expediting Cost Efficient Resolution of Claims" (pdf). In addition to containing all the basics, it will help you to see ADR from your opponent's point of view, which might give you negotiating ideas that you wouldn't have thought of otherwise.
 

Does It Matter Whether the Mediator Came from the Defense or Plaintiff Side of the Bar?

In selecting a mediator, I don’t pay too much attention to whether the mediator was (or is) a plaintiffs’ lawyer, a defense lawyer, or a judge. Instead, I focus on the mediator’s results: does he or she have the reputation as someone who can get cases settled?

Using this criterion, I also don’t care if I end up using a mediator who was first suggested by my opponent. It’s one of the beauties of mediation: Unlike an arbitrator, the mediator cannot bind you or your client. Therefore, you don’t have to worry that he or she might harbor a secret bias that will sink your case. If it turns out that the mediator is favoring the other side, you can say no during the mediation and walk away.

Bottom line: Don’t obsess over the mediator’s past work history. Ask other lawyers how effective the mediator was at getting the parties to agree, and leave it at that.

Mediation Resources

There are a number of articles about mediation at Stephen Marsh's website, ADR Resources. Included among the articles is "Mediation Pitfalls and Obstacles," which notes:

• 24% of the failed mediations result from a lack of settlement authority. In a survey involving over 150 mediators and a substantial number of sessions, almost one quarter of the failures were the result of a necessary party not attending. Those with authority must attend in order for the process to work.
• 21% of the failed mediations result from a lack of preparation. Often referred to as a "inadequate discovery," the problems quite commonly reflect a party or an attorney who does not know enough about their own case to be able to settle the case.

www.IllinoisMediator.com

Thinking about mediating in Illinois? Take a look at IllinoisMediator.com, the website address of Consensus Mediation, LLC, with offices in Highland, Illinois.