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Mediation participate effectively at the mediation. b. Explain the law as it has been created f. Explain to your client the statutory rules by the State so that clients understand that govern mediations, including issues the result they get will not necessarily such as confidentiality and appearance be what they think is fair but what the with the authority to settle the dispute. law allows. It is very important for a party to under- c. Examine the alternatives to the client’s stand the restrictions on mediation par- objectives to help the client think in ticipants and the potential sanctions for terms other than win/loss. Explain to 1.client about g. Explain how the mediation session is typ- judgment problems. The client mustthe client the consequences of not set-tling, including risks, delays, appealsand enforceability/collectability ofnoncompliance.ically conducted with the goal that theclient will understand the procedures andEducate yourthe mediationrealize that having a trial and receivingwill not be surprised by the process.processa verdict or judgment is not necessar- h. Proper client preparation avoids the need ily the end of the process. a. The client needs to know the opportu- for posturing in front of the client during nity presented by mediation. Commu- a private caucus. d. Explain the facts as the law sees them nicate the process in writing. Develop so the client understands that what a standard memo to send clients that matters is not the facts but the admis-Show your client a template agreementi. explains mediation. Your job is to teach client should review any release that you sible evidence.that includes standard terms. Also, your your client about the process. intend to offer as part of the settlement. e. Explain the status of any negotiations b. Send the client the mediator engage- j. Compare the confidential nature of me- approve of the starting point for fur-that have occurred so the client canment letter to confirm an understand-diation with the public display of a trial.ther negotiations at the mediation.ing regarding the computation of fees.Describe the dynamics of a trial, i.e. ex- If necessary, obtain an advance payment pense, time, inconvenience, and stress. f. Work with the client to determine and to cover the anticipated mediator fees. set the goals the client is seeking from Confirm with the client that there is no k. Explain that a settlement provides (1) a the resolution process so that you are conflict of interest problem by identify- guaranteed result, (2) no risk of trial, and certain you are headed in the right ing the mediator and/or law firm. (3) closure. direction in the mediation session. c. Your client should know the purpose l. Make clear to your client that a mediation Define your client’s objectives to set of the mediation, the potential games- conference is not an adversarial situation. concrete goals. Work with the client manship that may occur and the likely to create an aspirational “bottom line,” goals and strategies of the other party. taking into consideration relevant fac- Focus on the problem-solving opportu- tors such as fees and costs, provable nity for the parties. damages, collectability and the likeli- hood of success. d. Confirm the client is aware of the pos- sibility of an impasse and is prepared to discontinue the mediation if further ne- gotiations appear to be futile. Explain that the option to adjourn the media- tion is also available to provide the par- ties with the opportunity for further e. Whether mediation is being considered Make sure your 3.yourselves as aPrepareclient knowsteam2.negotiations.by the parties as an alternative to litiga-tion or has been ordered by the court, communicate in writing to your client the case the relevant points outlined in this ar- a. Clarify your respective roles in the me- ticle. The party has a right to make an a. Discuss the status of the case so the diation. Define the extent to which you informed decision to participate in the client understands how much or how will be the leader, or whether the client mediation. Equally important, the cli- little time a settlement can save. should be a dominant participant. ent must be fully informed in order to Birmingham Bar Bulletin/ Winter 2012 11


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