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2019 Edition A Lawyer's Guide to Mediation

A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

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Page 1: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

2019 Edition

A Lawyer's Guide to Mediation

Page 2: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

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Page 4: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

A Practical GuideTo Mediation

Page 5: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

meet the presenter

02

Quick Facts

35 – years practicing law

27 – years as a Partner at a one of Wall Street’s most influential and prestigious international law firms

100+ – mediations conducted/ participated in

ExperienceAfter 30 years of litigating corporate and commercial disputes, DennisKlein knows about complicated, multi-district, high-stakes businessdisputes. Dennis is a State of Florida Supreme Court Certified Circuit andAppellate Mediator. Prior to joining the Kelley Kronenberg, Dennis was theowner of an alternative dispute resolution practice that specialized incommercial disputes.

Page 6: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

litigation is aprocess

03

Motion to Dismiss Discovery

Summary Judgment Motions

Pre- ComplaintComplaint

Response/Cross Claim Experts

Pre-Trial Motions

Trial

Page 7: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

askyourself

what is the goal of agood civil litigator

04

Page 8: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

Dismiss or narrow the case through motion practice.

Settle at the most advantageous time for your client.

Page 9: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

mediationmain target

page06

to achieve the goal of settling at the most advantageous point in time.

the best tool

Page 10: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

mediation can be usedto achieve other goals

07

To demonstrate to your client that the litigationcannot be settled and proceeding with theexpense of litigation is justified

To settle the case at a later period of time in thelitigation

Page 11: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

what is the goalof the mediation?

08

If settlement is to occur in mediation,both parties need to convey to each otherthat they are being pushed to their limitand that the settlement is “fair.”

mediation

Page 12: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

role of amediator

09

01 understand case issuesthe mediator must understand the key legal issues and key factual disputes of the case 04 understand neutrality

the mediator must understand that they are a neutral party, not a judge

02 understand procedurethe mediator must understand when the mediation is occurring in the process of the case

05 no winners the mediator must convey to the parties that no one wins in a mediation

03 understand party positionsmediator must understand the goals of the parties and counsel – is the goal settlement, not to settle or to settle at a later point in time?

06 understand strategya mediator must understand that everythingin a mediation is strategic

Page 13: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

pre-mediation activity

- Submission and exchange of short statements

- Joint conference with parties

- Individual conferences with parties

- Tough question emails to attorneys prior to the

mediation

Page 14: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

location of themediation

11

lawyer’s office

holding the mediation at one of the lawyer’s offices affords the parties comfort, access to documents and more focus.

neutral site

There is an inconvenience of not having access to documents and/or decision makers.

a party’s office

holding the mediation at the office of one of the parties affords access to the decision makers.

Page 15: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

who do you bringto a mediation?

12

The Mediation Rules

Client

Attorneys (including associates)

Experts

Page 16: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

openingstatement

13

advantages

• Face to face opportunity to demonstrate the strengths of your case

• Allows attorneys to focus the mediator on the issues

• Creates an adversarial mediation climate

Page 17: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

openingstatement

14

disadvantages

• Creates an adversarial mediation climate

• Time and expense

• Allows attorneys to ask questions

• Allows the mediator to ask questions

Page 18: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

openingposition

15

• Goals of mediation• Settlement expectation• Expected length of

mediation• Client’s patience• Adversaries patience

factors

If there has been an offer/demand… that is the

starting number.

starting number

Your position must be based upon your expected damages…

you cannot just ”pick a number"

expected damages

Page 19: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

mid game

Movement must be based upon a compromise of the components of your damage claim…you cannot just pick numbers

You should articulate a rationale for any change in your negotiating position

Page 20: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

end game

• Never disclose your bottom-line

• Bracketing

• Creative solutions• Relationship of the

parties• Future business

opportunities• Contingencies

Page 21: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

document thesettlement

1 sign offon key teams

2 deadlinesexchanges of documents and final approvals

payment and releases

notification to the court

Page 22: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

negotiationstrategies

Page 23: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

good guy/bad guy

Page 24: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

good guy/good guy

Page 25: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

bad guy/bad guy

Page 26: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

erratic party

Page 27: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

walking out

Page 28: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

plane to catch –deadline

Page 29: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

the mediator/ “silver bullet”

Page 30: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

lawyers’ pet peevesabout mediators

27

• mistakes• lack of preparedness• weakness of a legal argument• fees

embarrassing the lawyer

Page 31: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

lawyers’ pet peevesabout mediators

28

• sensitive facts• pulling the lawyer out of the room

embarrassing the client

Page 32: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

lawyers’ pet peevesabout mediators

29

• sitting in a conference room• seeing the “forest from the trees”• lack of preparation• lack of perseverance and

creativity

miscellaneous annoyances

Page 33: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

keytakeaways

strategymediation requires

strategic preparation

trial toolmediation is an important tool in achieving the goal of maximizing recovery/

minimizing exposure

understandingmediation requires a good mediator who understands the issues in the case and

the goals of all parties

no one wins in a mediation

innovationmediation require a

mediator with perseverance and

creativity

no winners

Page 34: A Lawyer's Guide to Mediation · Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving

thank you.