Legal Mediation Techniques

First of all, congratulations on your (post) essay! Secondly, I would like to know whether there is a difference between the types and styles of mediation. In other words, are they synonymous? And if not, could you explain the difference? Tip #3: Skip the phone debates. Just like dropping anchor, try not to get involved in phone debates with opposing lawyers that reveal all your mental impressions of the case. If you admit that one part of your case is weaker than others, you have lost the power of these arguments in mediation. The same goes for conversations at the courthouse before a hearing. There are obviously some benefits to «feeling the other side» and determining whether the lawsuit can be resolved as soon as possible, but be careful about the information you share. Sometimes it is easier to point out that your point of view has already been made in the pleadings. There was a scene in The Godfather where, during a meeting with his father, Sonny Corleone openly questions the proposal of a rival family of the Mafia, and then Don Vito Corleone tells his son never to let anyone outside the family know what he thinks. The same applies in civil proceedings, both during the exchange of reflections on the case and during the proposal for mediation. If your client wants to go to mediation, be careful how you tell the other party, as sometimes this can be perceived as a sign of weakness. Some lawyers even confirm in writing that it was the other lawyer who proposed mediation.

In Florida, pre-trial mediation is necessary, but remember not to mediate too early, before the parties have bled enough, or too late if the parties end up arguing primarily over attorneys` fees. In your communication with opposing counsel about the merits of the case or the prospects for mediation, less is more. The next most important thing for you is to meet with your lawyer before mediation and prepare for trial. You should explore the strengths and weaknesses of your case with your lawyer. If your lawyer tells you that your case has no weaknesses, tell him that he has clearly not done his homework because each case has its weaknesses that must be discussed in depth before participating in mediation. You and your lawyer need to have a clear understanding of all aspects of your case in order to seize the opportunity to resolve the case outside the courtroom. The mediation process involves a lot of «give-and-take» during the process. Your preparation should include considering possible outcomes, potential risks and rewards, as well as financial and emotional costs to you. You will also need to assess your appeal and the judge or adjudicator who will decide the case if your mediation fails. Preparation is just as important as recruitment in order to achieve a successful mediation outcome.

In direct contrast to supportive mediation is evaluative mediation, a type of mediation in which mediators are more likely to make recommendations and suggestions and express opinions. Rather than focusing primarily on the underlying interests of the parties involved, evaluative mediators are more likely to help parties assess the legal merits of their arguments and make fair decisions. Evaluative mediation is most often used in court-ordered mediation, and evaluative mediators are often lawyers with legal expertise in the area of disputes. The most common cause of mediation failure is the absence of persons with real establishment authority. The power of conciliation is the power to agree on what is necessary and reasonable to resolve the matter. Author`s Note: We have divided the entire article into a three-part series to cover five tips in each section. Whether it`s what to expect at a bargaining hearing, creating a summary of mediation, determining bargaining points, and techniques for preparing solid opening statements, this article provides practical advice that lawyers can apply immediately in their practice. I invite you to read the article and do not hesitate to contact me if you have any questions. We`ll be publishing Part II in a few weeks, so check back to learn more about it. Remember your goal. The purpose of mediation is to end the dispute. Ironically, some position papers appear to be written as if the purpose was to prolong the dispute.

Expressing outrage at opposition, insults or accusations of lies is counterproductive. This will take the parties further away from an agreement than they already are. Mediation is intended as a «stoppage» in relation to the dispute and should be treated as such. Consider using the letter form instead of the advocacy form. Tip #2: Don`t drop anchors. Negotiations begin well before mediation. An anchor is a number that will be mentioned at some point in the trial and that the other party will no doubt remember many months later. Every number looks like an offer, even if it doesn`t. Lawyers may try to use qualifying language, such as «my client could go for $100,000» or «I doubt he would go $100,000,» but the qualifiers fall on deaf ears. All the other lawyer hears is a possible comparison number or an «anchor» of $100,000, which has a big impact on where the matter will ultimately be resolved. In one study, alawyers were asked to evaluate a rare piece of jewelry for auction and were given information about its condition, rarity, age, manufacturer and comparable sales. They were given a detailed questionnaire that asked at the end, «Do you think the auction value exceeds $2,500?» There was a white line for the lawyer to give his best rating, and the average figure was $1,800.

Other lawyers received the same questionnaire, but ended up asking if the value would exceed $5,000 at auction. The average estimate on these forms was $4,200. The presenter therefore had a great influence on the lawyer`s evaluation. If the opposing lawyer asks what your client might take, you may not want to provide a number. For the plaintiff, you could say, «He wants the full amount back,» or for the defence, «We don`t want to pay anything at all.» Of course, if you file a settlement proposal under Fla. R. Civ. P. 1.442, you will have to weigh the potential benefit of transferring fees from a billing number with the disadvantage of dropping an anchor.

Since the vast majority of cases are resolved through a settlement rather than a court decision, which can result in a transfer of costs, avoiding anchoring may be the most important consideration. The mediation statement should be concise and concise, mention the status of the discovery, be neutral and contain factual information. Don`t exaggerate facts and avoid judgments. Also provide a brief explanation of related and previous litigation, experts, offers of judgment, injunctions, and who will participate in the mediation. Fast forward to 2018, and you`ll find that lawyers who support mediation are the most effective lawyers, said Forrest S. Mosten, a California attorney who co-authored the ABA book, «Unbundled Legal Services: A Family Lawyer`s Guide,» with attorney Elizabeth Potter Scully. A good personal quality to have when mediating is knowing when to compromise. Prolonging mediation after a certain point not only wastes time, but can also reduce the client`s chances of a successful solution. Just like a process, the key to successful mediation lies in preparation. You should have gathered all the facts and left nothing to chance. Availability of all facts legal authority to negotiate. When a lawyer is prepared, the client also feels confident and relieved.

Willingness to compromise. This attribute is the most important of all. Mediation should never take place unless the lawyer and client are willing to make a reasonable compromise. Participants should be aware that almost all lawsuits involve risk. The party that is determined to «win» usually wastes everyone`s time. Two key characteristics of successful mediation are clarity and honesty in presenting the facts. When honest information is exchanged between the two parties, there is less bitterness and paranoia among the participants. Withholding certain information is usually counterproductive and can even weaken the case. Civil lawsuits are usually settled by a mediated settlement agreement, which can have an infinite variety of numbers and settlement terms. The outcome a party achieves after months or even years of litigation depends largely on what happens on the day of mediation.

Mediation is therefore the most important day of the case.