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2019 Edition
A Lawyer's Guide to Mediation
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A Practical GuideTo Mediation
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.
litigation is aprocess
03
Motion to Dismiss Discovery
Summary Judgment Motions
Pre- ComplaintComplaint
Response/Cross Claim Experts
Pre-Trial Motions
Trial
askyourself
what is the goal of agood civil litigator
04
Dismiss or narrow the case through motion practice.
Settle at the most advantageous time for your client.
mediationmain target
page06
to achieve the goal of settling at the most advantageous point in time.
the best tool
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
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
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
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
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.
who do you bringto a mediation?
12
The Mediation Rules
Client
Attorneys (including associates)
Experts
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
openingstatement
14
disadvantages
• Creates an adversarial mediation climate
• Time and expense
• Allows attorneys to ask questions
• Allows the mediator to ask questions
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
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
end game
• Never disclose your bottom-line
• Bracketing
• Creative solutions• Relationship of the
parties• Future business
opportunities• Contingencies
document thesettlement
1 sign offon key teams
2 deadlinesexchanges of documents and final approvals
payment and releases
notification to the court
negotiationstrategies
good guy/bad guy
good guy/good guy
bad guy/bad guy
erratic party
walking out
plane to catch –deadline
the mediator/ “silver bullet”
lawyers’ pet peevesabout mediators
27
• mistakes• lack of preparedness• weakness of a legal argument• fees
embarrassing the lawyer
lawyers’ pet peevesabout mediators
28
• sensitive facts• pulling the lawyer out of the room
embarrassing the client
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
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
thank you.