tips to prepare for mediation

TIPS TO HELP PREPARE FOR MEDIATION

Presented by: Matthew W. Argue, Esq.AMCC Construction Mediator &

Arbitrator

MATTHEW ARGUE’S TIPS TO HELP PREPARE FOR MEDIATION

Overview:

Course Objective:

Course Relevance:

Target Audience:

One hour lunch time presentation to general views on how to prepare for and participate in effective mediation.

Attorneys will learn to better prepare for mediation and to be more strategic during the mediation process.

High. Nearly all construction defect cases are resolved in one or two mediation sessions.

Attorneys who regularly prepare for and participate in mediation of construction defect cases.

I. Selecting the Mediator

A. Does candidate have required training and / or expertise

B. What “style” of mediation is appropriate; facilitated or evaluated

C. A good mediator needs all these attributes and more in great abundance: persistence, patience, impartiality, flexibility, creativity, confidentiality, availability, good organization and administration skills, listening and communication skills

CONTINUED: I. Selecting the MediatorMatthew Argue

D. Credibility of Mediator – will the other side listen to the mediator?

E. Is the mediator available?

F. Does the mediator follow up between mediation sessions?

II. How to Prepare for Mediation

A. Be sure to have relevant information at the mediation

B. Prepare organized binder of key documents, subcontract agreements, homeowner matrices, mediation brief, and service list

C. Provide mediator with matrix of settlement demands, settlement offers, insurance carriers, additional insured endorsements, claims adjusters names, phone numbers and email addresses

CONTINUED: II. How to Prepare for Mediation Matthew Argue

D. Review important documents and deposition transcripts for persuasive information to give mediator law and facts to pressure the other side

E. Try out different themes for the case and be prepared to share with mediator in confidential brief and during caucuses

F. Prepare mediation brief / letter that includes relevant case information, including number of homes or square footage of project, location, year built, purchase or sale price, key witnesses, legal and factual arguments, procedural history, relevant court dates and Judge, examples of key issues or defects with photographic or expert / testing information to support legal position, settlement negotiations and settlement position

G. Use power point, electronic photos, videos or other computer generated presentation to persuade mediator and provide reference material for caucus with opposing party


H. Prepare experts to present analysis and support with appropriate and persuasive photos, documents, testing results and other demonstrative exhibits

I. Evaluate acceptable settlement range, obtain adequate settlement authority and prepare client / carrier for possible high and low value of case

J. Anticipate opponent’s opening demand and real “bottom line”


K. Focus on areas of disagreement and prepare to counter opponent’s position

L. Look for creative solutions that do not cost your client and enhance settlement value for opponent

III. How to Prepare for and Utilize the Joint Session

A. Recognize the audience is both the opponent and the mediatorI. Convince opponent of strength of claims or defenses and

ability to persuade trial of fact of your position

II. Give mediator a factual and legal basis to pressure opponent during separate caucus sessions

III. Evaluate strength of claims or defenses of opponent and factor into settlement value of case

CONTINUED: III. How to Prepare for and Utilize the Joint SessionMatthew Argue

B. Similar to an opening statement

I. Preview the evidence

II. Review theories of liability and damages

III. Develop case themes

C. Use opportunity to talk directly to the client or decision maker of opposing party


I. People rarely make settlements with those they do not respect

II. Reduce emotions and focus on common interests that can be exploited for mutual benefit

III. Look for ways to offer solutions to weaknesses or problems with opponent’s case (without conceding your position)

IV. Outline plan for resolution and get agreement on parameters of settlement

D. Look for valuable concessions that are shared during problem solving or brainstorming sessions


IV. How to Prepare for and Utilize the Caucuses with the Mediator

A. Carefully plan the caucus sessions

B. Use caucuses to introduce important documents and facts to help mediator apply pressure to opponent

C. Adjust negotiation strategy to fit the case and opponent

D. Avoid too early “bottom line”

CONTINUED: IV. How to Prepare for and Utilize the Caucuses with the Mediator

Matthew Argue

F. Discuss with mediator your strategy and solicit mediator advice based on mediator discussions with other side

G. Confirm strategy with mediator after each separate caucus

E. Be persistent with case themes and verify with mediator his or her presentations of your position to other side in separate caucuses

H. Listen to the mediator and watch for clues about the other side’s strategy and bottom line

CONTINUED: IV. How to Prepare for and Utilize the Caucuses with the Mediator

Matthew Argue

I. Hold back some good information until the later caucuses

J. Take time necessary to internally caucus before, during and after each mediator caucus

V. Closing the Deal

A. Do not rush mediator to give an evaluation or target for the case

B. Use mediator proposal to bridge final gap between parties

C. Have mediator make proposal conditional without communicating your commitment to the number

CONTINUED: V. Closing the Deal Matthew Argue

D. Suggest alternative consideration to supplement monetary offers

E. Suggest a Confidentiality Agreement

F. Bring settlement agreement on laptop computer to finalize and sign at the mediation

VI. What Should You Expect from Your Mediator

A. General Knowledge of Law: General Knowledge of Insurance and Indemnity

B. Understanding of Facts

C. Ability to Listen

D. Maintain Neutrality

E. Administrative Skills

CONTINUED: VI. What Should You Expect from Your Mediator Matthew Argue

F. Mediation Skills

G. Ingenuity

H. Experience / Evaluation – only at the appropriate time

I. Confidentiality

VII. What Mediator Should Expect from the Parties

A. Preparation of all parties

B. Professionalism and Courtesy

C. Candor

D. Willingness – willing to compromise, willing to resolve outside of traditional litigation mode

E. Inventiveness

VIII. Reasons Why Mediation Fails

A. Parties fail to cooperate and engage in necessary mediation preparation activity (e.g., exchange of documents, exchange of expert information, specific defect list and reasonable COR)

B. Mediator has not been properly prepared

C. Mediator fails to manage the expectations of the parties

CONTINUED: VIII. Reasons Why Mediation Fails Matthew Argue

D. The parties and mediator fail to arrange for authorized representatives to attend the mediation

E. Fail to develop the momentum and confidence necessary to settle the dispute

F. Fail to utilize shuttle diplomacy to impart timely flow of needed information

CONTINUED: VIII. Reasons Why Mediation Fails Matthew Argue

G. Failure to impart flow of new information, recent case law, and additional facts and documents to encourage parties to think about settlement

H. Mediator fails to follow up and persistently pursue settlement opportunities following initial impasse

I. Mediator fails to utilize proper facilitating and / or evaluative techniques

tips to prepare for mediation

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