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, […]
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, […]
Learn What You Can About Opposing Counsel and Their Approach to Mediation Before the Mediation Conference.
More and more often lawyers find themselves mediating with opposing counsel with whom they have no previous experience. So, as part of your preparation, find out what you can from colleagues and from the internet about the tendencies of your opponents. Do they settle cases or prefer to try them? How many cases have they […]
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) […]
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 […]
A Plaintiff That Allows a Defendant to Pay in Installments Should Insist on an Appropriate Penalty in the Event of Default.
A defendant at a mediation will often lack the ability to make a lump sum payment sufficient for plaintiff to agree to a settlement, so a settlement can be had only if plaintiff agrees to allow defendant to make some number of installment payments. Where feasible the plaintiff may demand an enhanced lump sum down […]
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 […]
Alert Your Mediator and the Other Side in Advance That a Defendant Has Limited Ability to Satisfy a Money Judgment.
Often at mediation a defendant asserts the so-called “uncollectibility defense”, i.e., a lack of non-exempt assets sufficient to satisfy a money judgment, which, if true, may moot the plaintiff’s case. This claim is nearly always met with skepticism, and will carry no weight unless credibly documented, so raising the claim for the first time at […]
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 […]
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 […]