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Mediation b. Th e client must be prepared in the ar- deal with the suggestions in this article. f. Recognize and advise the client that eas of expected legal fees and possible b. Another meeting should take place im- you may have to work on a new bot- exposure to costs. Discuss any expo- mediately prior to the mediation con- tom line off er if the mediation yields sure to a prevailing party award of fees ference to fi nalize your plan and answer new information that aff ects your cli- and costs. Include the costs of a poten- any questions. ent’s position. tial appeal. c. Rehearse your client’s story. Prepare an c. If you have a client who can speak well, outline for the client to review at home. consider permitting him or her to in- Th e client should be able to describe teract with the mediator and the other what happened without your assistance. side directly. A well informed client Practice so that important points are will be more relaxed and make a better made without omissions or adding new impression. details. d. Clients must know and be assured that they are an integral part of the process and presentation, and that the media- tion will not be a one-person show by e. Review with your client any pre-medi- 6.GeneralPreparationthe attorney.ation papers you have prepared. f. Explore initial unrealistic positions and tips sensitive issues. a. Contact the mediator to determine g. Review the strengths and weaknesses if the mediation will convene with of the case. Discuss with the client so- Evaluate a joint session, or with an individual5. lutions that might work for both sides. Settlement caucus followed by a joint session. Remind your client that a settlement must be an agreement that is accept- Parameters b. When preparing the client and dis- able to all parties and will require co- cussing the process, make sure the cli- operation and compromise. a. Prioritize the client’s goals regarding ent knows that the process allows the monetary and nonmonetary compen- opponent to hear from the other side’s h. Confi rm that you have every relevant sation. Does the client have a clearly attorney. document and computation from the defi ned need or goal to achieve from c. Th e client should be prepared to hear client that you need to support your the mediation? facts and argument presented by the client’s claim or defense. You do not b. Determine the importance to the cli- other side with which the client will want any surprises at the mediation ent of reaching a settlement. Consider likely not agree or which may hurt the conference. the consequences for your client, the client’s case. Remind the client that other party and possible third parties learning about and considering the if no agreement is reached through other side’s case is an important part 4.Conduct at c. Help the client articulate his or her d. Tell the client that at the mediation,of the settlement process.the client should listen as if the clientnegotiation.best alternative to a negotiated agree-least two pre- mediation ment and worst alternative to a nego- was a juror or the judge and try to be conferences tiated agreement. as objective as possible. after you have d. Discuss possible settlement options. e. Make a list of questions to ask the oth- explained the Brainstorm with the client to see if er side. Determine if it will be best for process in there are solutions that might work the client to ask the questions. writing e. Reality test your client with an assess- f. Emphasize that your side needs to re-main calm and professional. Leavefor both sides. a. Th e fi rst client conference should be ment of the strengths and weaknesses the name calling and histrionics to at least a week before the mediation of their case. Ask your client their the other side. conference. Devote suffi cient time to opinion on this issue. 12 Birmingham Bar Association


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