Take Enough Discovery to Make the Case Ripe for Mediation.

Cases often fail to settle when the parties attempt to mediate before the case is ripe for mediation. Until counsel on each side have a similar understanding of the facts of the case, they know only what their own client has selectively opted to share with them. To make the case ripe for fruitful mediation, […]

Video Mediations Make Necessary Settlement Authority Accessible

Rules of court and judicial procedural orders require that a party’s representative at a mediation have full authority to negotiate and agree to a settlement. But only infrequently will an institutional, insurance, governmental or large corporate party send such a representative. Because video mediation allows each party to participate from its own place of business, […]

Provide the Mediator with an Effective Mediation Statement.

Many mediation statements lack information essential to the Mediator’s understanding of the case. An effective statement will be submitted on time and will include: 1) a brief statement of facts, issues and positions; 2) attached critical pleadings, e.g., complaint, answer and affirmative defenses, pending motions for summary judgment, important orders entered by the court; 3) […]

Submit Your Mediation Statement to the Mediator on Time.

Mediation is mandatory in our trial courts and settles a substantial majority of cases – less than 2% are resolved by an actual trial. Mediation is most often a case dispositive proceeding, so treat it as such and prepare for it as diligently as you would for trial. A mediation statement whipped up at the […]

Prepare Your Client for Mediation.

Your client is the ultimate decision maker at the mediation and needs to be well prepared in advance to fulfil this role. You have an ethical duty to keep your client informed about the case. Make sure your client understands and appreciates both sides, including the weaknesses and uncertainties of its own case. Prevent having […]

Don’t Fall in Love with Your Pre-Mediation Valuation of Your Case.

Don’t fall in love with your pre-mediation valuation of your case. Granted you want to negotiate a settlement commensurate with the fair value of your claims or defenses, but so does your adversary, who will ascribe a much different value to the case. Although counsel for each side may evaluate the case, neither of them […]

Bait the Hook to Suit the Fish.

Not all mediation settlements are as simple as defendant writes a check and the parties exchange releases. Even terms of payment – timing, security, default remedies – can be contentious. A mediating party focuses on what it needs to receive but must also consider what it is willing to give to get it. Your mediator […]

Download Chapter By Francis L. Carter

Bankruptcy Mediation is a treatise published by the American Bankruptcy Institute