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Ten Mediation Do's And Don'ts

Now that mediation is a permanent part of the litigation landscape, trial lawyers must learn to deal effectively not only with the process of mediation, but with the mediator himself.

The following is a list of ten do's and don'ts that should make mediation more effective:

  1. Always remember to treat the mediator kindly.
    While the mediator does not make a decision like a judge, any experienced trial lawyer knows that it is a lot easier for those lawyers who have a good relationship with the clerks, bailiffs and other players in the litigation process.
  2. Always prepare a mediation summary for the mediator in advance of the mediation. Your clients will appreciate it, you will be better organized and the mediator will be more effective.
  3. Don't use the mediator as a errand boy to shuffle back and forth with offers and counter-offers. Give the mediator the reasons and rationale for your offers and counter-offers so that he can be more persuasive when dealing with the other side.
  4. Prepare your client for settlement in advance. As we all know, settlement means taking something less than you think you are entitled to. Insisting on all that you are entitled to leaves no incentive for the other side to settle and only insures that there will be a trial.
  5. Always put your settlement agreements in writing and leave sufficient time to negotiate during this process, because oftentimes when the settlement is put in writing, there are matters that need clarification.
  6. Don't forget to include attorney's fees for enforcement of the settlement agreement. While this is a double-edged sword, it has helped convince people that it is probably better to go along with what has been put in writing rather than argue about it, unless there is a major dispute.
  7. Consider getting a cost deposit from a client for mediation up-front. The mediator does not know your client and is not offering his services to your client, but is generally offering his services to you as an attorney, whom he will look to for purposes of billing. Getting a cost deposit will insure that you will be able to pay the mediator in a timely manner and not receive bills marked "past due".
  8. Remember to let your client talk during mediation. The mediation process works partially because it is an opportunity for the parties to actually get some things off their chest and also helps enlighten each side on the other party's point of view, which can be instrumental in resolving a dispute.
  9. Try to resolve all contingencies before mediating. In other words, if you are waiting on a doctor's final medical narrative to determine a disability rating, it would probably be more fruitful to schedule your mediation after actually receiving the doctor's report. The same is true of expenses, damages and witnesses' statements. It is possible to mediate cases before they are fully developed, but usually that is done early on when neither side has done all of their homework and accordingly, both sides are at the same advantage or disadvantage. This is not the same as when a case is on the trial docket and you are mediating a week or two prior to the trial.
  10. Have all of the necessary documents that you are going to need in order to be persuasive at the mediation. Don't expect the other side to take your word for it that the doctors' bills are approximately $25,000.00 or a witness has indicated that he is going to testify that the other guy ran a red light. Get an affidavit and bring it with you to the mediation.


Learning to deal effectively with the mediation process is an advantage that a trial lawyer cannot afford to miss. The more that is put into being prepared for a mediation, the more likely the outcome will be a fair and reasonable settlement. However, even cases that do not settle at mediation are advanced because mediation at a minimum can result in a form of discovery and a way of becoming more knowledgeable about your case.

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