Monday, March 6, 2017, 11:29 PM
Posted by Administrator
These days (and, for the past 20 years), no case goes to trial without the parties and their lawyers, first going to mediation. Mediation, with a trained mediator, can take 2 hours, 5 hours, 10......or more. A trial can be quicker (and, frequently, more productive). Anyway, I've been to a couple (of hundred?) and, here are some tips:
10) Remember, you can always settle.....just give the other side what he/she wants. But, is this what you want to do or do you want the other side to give you what you want?
9) After 4 or 5 or 6 hours, you are probably settling just to make the mediator happy...or, because your blood sugar is low and you are just looking for a way for mediation to end so you can leave. Remember, nice people confess to crimes they didn't commit after long police interrogations....and, if you sweat 'em for long enought, people will frequently make stupid deals.
8) You can always leave. (Note. There is a requirement that parties to a lawsuit negotiate in good faith, so, for the first two hours---you shouldn't leave.) At some point....regardless of what mediator wants....if you haven't settled, it is time to leave. "At some point" (in my humble opinion) means after a few hours......not six or seven or eight.
7) You can always have a trial. Don't spend 8 hours in mediation to avoid a 2 hour trial. It is okay not to settle. Nice people fail to settle all the time. You don't have to settle (though some lawyers and all mediators try to give the impression that you do.)
6) And, you are at mediation to try to settle.....not to give the other side information about your case. Unless giving up a little information will likely result in a settlement you want....shut up!
5) On the other hand, if the other party (really, their lawyer) wants to tell you things about their case....listen. Getting information can be expensive. When it's offered for free, don't ignore it.
4) Let your lawyer do the talking. Lawyers are (I hope) sensitive to the idea that the less said......the better. (I kick clients under the table if they start talking too much. I know that this is an evil and controlling thing to do. It is also, part of the job.
3) If you do settle, the next day you will feel horrible about the deal you made. This is normal. Every big decision (like the decision to buy a Jaguar or the decision to settle a case) entails a moment of insanity. The next day, when logic prevails, you will second guess your decision to take the deal you took. Don't worry about it. You did the right thing. Move on.
2) Remember, the mediator is not your friend....he/she is paid to do what he/she can to get a settlement. If part of that is seeming to be your friend, that's okay from the mediator's point of view. Remember the Stockholm Syndrome? (The police surround a bank being robbed; the robbers take the staff and customers hostage and the hostages begin to take the side of the robbers.) After a few hours, you will start taking the side of the mediator who is, in effect, holding you hostage in the mediation room. This is likely to lead to a settlement you don't want. Leave!
1) Spend you mediation time in a separate room from the other side. Use the mediator as a go between and pressure him/her to make the deal you want. Make the mediator's success depend on your whim. Be unreasonable if you feel like it. Ignore offers from the other side that you think are stupid.

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