| Many lawyers have represented parties in mediation. | | | | any defect in the manufacturer's product. Of course, |
| However, surprisingly few are really good at it. The | | | | these points should be made. |
| most common reason is that many lawyers approach | | | | However, it may well be appropriate to acknowledge |
| mediation just as they approach litigation: They view | | | | with sincerity that the plaintiff was severely injured and |
| themselves as there to prove a point, to never give an | | | | to express regret that the accident happened, although |
| inch, and somehow to "win" the mediation. Many | | | | not due to the fault of the manufacturer. Such an |
| lawyers compound these preconceptions by being | | | | acknowledgment in no way undermines the |
| poor listeners and lacking creativity in formulating | | | | manufacturer's position, but it is a humane and |
| settlements. | | | | thoughtful gesture that may also assist in resolving the |
| Mediation is different from litigation: A "win" in mediation | | | | case. |
| is not beating the other side; it is achieving the best | | | | Because mediation is confidential, there will likely be a |
| possible settlement for the client. The mediator is not | | | | time - often during a caucus - in which the candid |
| present to decide anything. The process of mediation, | | | | bottom line evaluation of the case should be discussed. |
| just like any negotiation, inherently involves give and | | | | Such a discussion is often the final step toward getting |
| take, and a settlement is not going to be possible if one | | | | into a settlement range that will resolve the case. |
| side seeks only "take" without any "give." | | | | Mediation advocates should be creative. In business |
| That is not to say that an advocate in mediation should | | | | cases in particular, there may be a "win/win" outcome |
| not forcefully represent the client's position. On the | | | | that is possible. Obviously, such solutions are among |
| contrary, particularly in the opening session, a lawyer in | | | | the easiest for a mediator to "sell" to the other side. |
| mediation should stress all of the strong points of the | | | | Good mediators may also suggest creative solutions |
| client's position and the weak points of the opponent's | | | | that have not been previously considered. Mediation |
| position. This should be done, however, in the context | | | | advocates need to be open to such approaches. |
| of understanding that the goal is reaching a settlement. | | | | Lawyers acting as advocates in mediation should |
| As an advocate in mediation, it is often appropriate to | | | | make sure their clients know the purpose of mediation |
| acknowledge what cannot be denied. For example, a | | | | before it begins. Clients should know that the goal is to |
| lawyer may be representing a manufacturer in a | | | | reach an acceptable settlement and that the lawyer's |
| product liability suit in which the plaintiff has been | | | | job is to try to help broker the best possible settlement, |
| severely injured. The manufacturer's position may be | | | | and that the approach in mediation will be different |
| based on simple causation: The real cause of the | | | | than the approach at trial if the case does not settle. |
| accident was the other driver's reckless conduct, not | | | | |