Mediation: Seven Things You Should Discuss With Your Client Before Mediation
Readiness Checklist for Mediation
Counsel should consider discussing the matters below with their client prior to mediating a litigated matter. Doing so will better prepare the client and counsel for the mediation itself and will improve the opportunity for resolution at mediation. For a printer-friendly version of this article, click here.
Explain the Process of Mediation
- What Is Mediation?
- What is the Role of the Mediator?
- What is Your Role at Mediation?
- How Does Mediation Compare to Litigation?
- Why Mediate?
- Who May Attend The Mediation?
- Is Mediation Confidential?
- What Will Happen At The Mediation?
- What Is A Separate Session?
- Can You Speak With Your Attorney Privately Any Time You Want?
- How Long With Mediation Last?
- What Helps To Get The Case Settled?
- Obtain client suggestions for non-monetary solutions, such as future business or payment in kind that may be desirable
- Decide whether an apology to or from the client might be appropriate
Selecting a Mediator
- Discuss the desired education, experience, and background of your mediator. Is subject matter expertise really necessary, or are mediator skills more important?
- Describe how the mediator selection process works (if specified by contract or otherwise)
- Determine whether an evaluative or facilitative mediator would be best for this case
Explain How the Status of the Dispute Influences the Mediation Process
- Has suit/arbitration been filed?
- Is trial/arbitration looming?
- How long will trial/arbitration take to a final resolution?
- Have there been any continuances?
- Is the tribunal likely to grant a request for a continuance from the other side, further delaying the matter?
- Are there pending dispositive motions before the court/arbitrator which create some risk?
- How should that risk inform the client’s decision-making?
- Discuss your honest assessment of chances of success on the pending motion
- Whether mediation is more likely to be successful with the risk hanging over the parties’ heads (creating uncertainty) or after a decision is made (may be too late or the client could spend more money for the court to “punt” on the matter until trial).
- Has the judge/arbitrator made any preliminary decision in the dispute?
- Has the judge/arbitrator indicated an early assessment of either party or their case?
- Either explicitly or implicitly?
- What is the status of discovery?
- How much is completed?
- Are party depositions completed?
- Discuss your honest assessment of the other party as a witness and likely impact they will have as a witness on decision by judge/jury;
- Discuss your honest assessment of your client as a witness and likely impact they will have as a witness on decision by judge/jury;
- What discovery needs to be completed?
- What is the estimated cost of completing discovery?
- Are expert witnesses needed?
- What is the estimated cost of the expert witness through the close of discovery?
- What is the estimated cost of the expert witness through the end of trial?
- Regarding previous settlement discussions:
- What are the impediments to settlement presently?
- How can the client and counsel best seek the assistance of the mediator to overcome those impediments?
The Impact of Opposing Counsel on the Case and the Mediation
- Discuss how opposing counsel presents in front of a judge/arbitrator/jury and the likely impact it may have on a decision
- Discuss how a mediator may assist the parties in dealing with opposing counsel
- Discuss the opposing counsel’s likely approach to the mediation
Settlement Authority at Mediation
- Determine your recommendation for a favorable settlement range (please do not discuss a client’s “bottom line” unless you want the client to “anchor” on that number and exhibit inflexibility to move beyond it at mediation)
- Discuss the pros and cons of settlement at certain dollar ranges
- What is the likely result for the client on its best day should the matter go to trial?
- What is the likely result for the client on its worst day should the matter go to trial?
- What is the likely result for the client on an average day should the matter go to trial?
Anticipated Costs of Litigation or Arbitration
- What is the likely cost to litigate to resolution (deposition costs, expert fees, attorney fees, etc?)
- The pre-trial costs
- The cost to try the case
- How much has the client spent to date on the litigation
- Is there a right to appeal an ultimate resolution by the court/arbitrator?
- Whether an appeal is available only at the end of the case
- What is the likelihood of either party to appeal should they lose at trial?
- An estimated of the cost to appeal
- An estimated time to complete appeal
- Whether the resolution of the appeal is likely to result in re-trying the matter or a portion of it
- Cost and Fee-shifting:
- Are the parties subject to a fee-shifting contractual provision, statute, or rule making an award of fees likely or possible
- Are litigation costs are recoverable from the other side
- The extent to which expert fees are recoverable (REMINDER: NRS 18.005 allows only “$1,500 for each witness, unless the court allows a larger fee after determining that the circumstances surrounding the expert’s testimony were of such necessity as to require the larger fee.”)
- How long it may take for the court or arbitrator to resolve the case
What Are the Chances of Success at Trial?
- What is the attorney’s honest assessment of the strength of the plaintiff’s claim, considering both liability and damages?
- If you obtain a judgment, does the defendant have assets available for collection?
- What is the attorney’s honest assessment of the strength of the opposing case?
- The likelihood that the trial will bring adverse publicity
- Discuss the risks of an adverse judgment, including:
- The availability of adequate liability insurance
- The availability of adequate funds or assets to satisfy a judgment
- Whether a judgment jeopardizes the survival of the client’s business
Jay Young is a mediator in Las Vegas, Nevada.
