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Mediation D. Robert Hoyle Mediation Strategies “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser – in fees, expenses and waste of time.” Abraham Lincoln decisions concerning the case. In litiga- tion, a lawyer should explain the general strategy and prospects of success, and rec- ognize that the lawyer has a duty to act in the client’s best interests. Rule 2.1 states that in representing Preparing the Client a client, a lawyer shall exercise indepen- for Mediation but to other considerations, such as moral,dent professional judgment, render can-did advice, and may refer not only to law Th e most important step you can Rule 1.2 (a) provides “A lawyer shall economic, social, and political factors that take in preparing for mediation is to pre- abide by a client’s decisions concerning may be relevant to the client’s situation. pare your client. Your client is even more the objectives of representation and shall Th e comment to Rule 2.1 states that a pivotal to the process in mediation than consult with the client as to the means by client is entitled to straightforward advice in a trial and should be ready to play that which they are to be pursued. A lawyer expressing the lawyer’s honest assessment. role. Well prepared clients do not need to shall abide by a client’s decision whether Ultimately, it is your obligation un- be protected from themselves, and can be to accept an off er of settlement of a mat- der the Rules of Professional Conduct to your most useful weapon of sincerity and ter.” Th e comment to Rule 1.2 states that fully advise your client of all information empathy. Preparing your client for media- in many cases the client – lawyer relation- so that the client can make an informed tion is not only good practice, it is also an ship partakes a joint undertaking. Th e decision regarding case issues. Th e duty ethical responsibility. lawyer should assume responsibility for to inform applies squarely to mediation Th e Alabama Rules of Professional technical and legal tactical issues, but preparation since the basic principle of Conduct apply to the preparation of your should defer to the client regarding such mediation is self-determination. Th e ul- client. questions as the expense to be incurred. timate decision-making authority rests Rule 1.1 states that a lawyer shall Rule 1.4 (b) states, “A lawyer shall with the parties. Ethically you cannot provide competent representation to a explain a matter to the extent reasonably permit a client to participate in media- client, which includes the preparation necessary to permit the client to make tion without a knowledge of the process necessary for the representation. Compe- informed decisions regarding the repre- and the ability to make a settlement deci- tent representation at mediation includes sentation.” Th e comment to Rule 1.4 pro- sion. preparation of both the attorney and the vides that the client should have suffi cient Consider the following points in pre- client. information to participate intelligently in paring your client for mediation: 10 Birmingham Bar Association


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