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MEDIATIONKnow When to Hold Them + When to Fold Them
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MEDIATIONThe New Normal
Often mandated by courts
Often mandated
by contract
Seldom a waste of
time
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ADVANTAGESof Mediation
1 Avoids costs + hassle
2 Allows principals to be heard
3 Minimizes risk + uncertainty
4 Can preserve relationships
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How Well Does Mediation Work?
Settlements ±
of the time85%
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Civil TrialThe Vanishing
Civil cases reaching trial: 1990 – 4.3%
2010 – 1.1%
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Civil TrialsCommon Pleas
1980 – 16.2%
2002 – 1.8%
2012 – 1.2% Ohio Supreme Court + American Arbitration Association
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1975 1985 2000 2015
CRIMINAL
CIVIL
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1975 1985 2000 2015
CRIMINAL
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Jury Trials as Percentage of Resolved Cases, Ohio CommonPleas Courts (Gen. Div.)
Number of Jury Trials in OhioCommon Pleas Courts (Gen. Div.)
Ohio Super Lawyers Magazine, January 2017
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Trials?What Killed
Economic downturn Tort reform High costs
of litigation
E-discovery costs Mediation
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So if it is going to eventually settle
anyway…Don’t you want to solve
the problem sooner rather than later?
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How Much Money Can Be Saved?
U.S. District Ct. Nebraska (2006)
hours per case104
per case$60K
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How Much TimeCan Be Saved?
American Arbitration Association
2 monthsMEDIATION
2 yearsTRIALS
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Ohio has adopted Uniform Mediation Act Requires conflict check and full
disclosure by mediators
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What Type of Mediator Do You Want?
Facilitator = Process
(Diplomat)
Evaluator = Opinionated(Tough Love)
vs.
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BE SECUREPick a mediator
your opponent is comfortable with
Pick a place your adversary feels
comfortable with
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MEDIATIONStatements
Almost always, separate confidential communications to mediator are permitted
To other side?
To mediator only?
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“What happens in a mediation, stays in a
mediation”
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Use of Opening Joint Session
GOODAllows principals a chance to vent and understand positions of other side
NOT SO GOODCan polarize positions and increase emotion
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How Much Advocacy is Too Much?
Enough to let the other side know you are
prepared and that they should appreciate risk
Without making the opponent defensive
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Do not be afraid to concede, appreciate,
apologize, or otherwise
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presented by Tom SigmundOhio Society of CPAs Mega Tax ConferenceDecember 7-8, 2015
Dos +DON’Ts
Mediation
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DOs+ Keep an open mind+ Remember your people skills+ Be a problem solver and work
for consensus
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DON’Ts
+ Do not negotiate with the Mediator+ Do not bring a firm bottom line to
the mediation+ Do not expect to “win”
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Seeking Consensus that a Deal Makes Sense
Frequently all sides cannot
afford to “push away from the table” due to
high collective legal fees
Making parties realistically
handicap their costs and chances
of success
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Get folks back to work + return to normalcy
Litigation takes people away from the core business – a high
intangible, but very real cost
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Be a trusted ADVISOR
Manage Client Expectations
Remember that an Attorney is alsoa Counselor at Law
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Breaking the Final Impasse
Splitting the difference
Use of the “bottom-line”
Be creative
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Use of “Mediator’s Number”“4th and long” play when all else fails
Both must agree or no deal
YES NO
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What is a Fair SETTLEMENT?
“One where both sides are equally displeased”
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Documenting theSETTLEMENTSaves cost and time later
Terms come before the numbers
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When is Mediation Really Over?
Rather than declaring impasse, “sleeping on it”
may allow for greater flexibility in the coming days
Follow-up call –Anything else that Mediator can do?
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What if Mediation
FAILS?
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You can litigate with a clear conscience“You
tried…”“You had nochoice…”
