By

Jay Young | Las Vegas, Nevada | Mediator

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, email the author.

Explain the Process of Mediation

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.

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on business law, business litigation, and acting as an Arbitrator and Mediator. Peers have named him an AV-Rated Lawyer, Best Lawyers, a Top 100 Super Lawyers in the Mountain States multiple years, and to the Legal Elite and Top Lawyers lists for many years. Mr. Young has been appointed a part time Judge, a Special Master to the Clark County, Nevada Business Court, as an arbitrator by the Nevada Supreme Court. He has been appointed as an arbitrator or mediator of well over 250 legal disputes from business disputes to personal injury matters. He has been named Best Lawyers for Arbitration. Mr. Young is a respected author of ten books, including A Litigator’s Guide to Federal Evidentiary Objections, A Litigator’s Guide to the Federal Rules of Evidence, and the Federal Court Civil Litigation Checklist.
Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.