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Five Tips for a Successful Mediation

November 26, 2019

Whether you are new to mediation or an experienced veteran, it’s always helpful to continue to hone your mediation skills. Here are some tips on how to up your advocacy and improve your approach.

Ingram, Yuzek, Gainen, Carroll & Bertolotti partner Jennifer B. Zourigui published an insightful short piece in the New York Law Journal. She advises, among other items, that attorneys adjust their advocacy approach to focus on mediation objectives and prepare specifically for the mediation. Here are her five tips in a nutshell.

Hire An Expert Mediator

An expert mediator may be a better option than a mediator who is an expert in the subject matter of your dispute. Zourigui notes that attorneys tend to value mediator subject matter expertise, but states that “a facilitator with well-honed mediation skills is usually adept at becoming familiar with new subject matter rather quickly” and that she has come to credit “the ability of an accomplished mediator to deal with even the most difficult of clients or adversaries and aid in an unexpected resolution” even more than subject matter expertise in many situations.

Prepare, Prepare, Prepare

Mediation preparation is crucial, particularly if you mediate at an early stage in the litigation. She notes that at an early mediation “it is useful to explain your position not just to the mediator but also to the other side.” Zourigui’s tips on mediation submissions?: “Keep it simple,” include important exhibits but summarize less important issues, and bring copies of key documents to the mediation.

Set Client Expectations

Make sure the client representative is knowledgeable about the dispute and is authorized to settle. Have a “game plan” and be ready to adjust expectations as the mediation progresses.

Don’t Be Too Aggressive

Think about how you will approach the mediation as an advocate and maximal aggressiveness may not be your best option. Zourigui suggests that you adopt the orientation of trying to persuade the other side, but not overtly trying to “win.”

Consider Non-Monetary

Don’t forget the key non-monetary aspects of the dispute. Zourigui warns that key issues unrelated to money can end up being ignored during mediation and can end up as deal breakers. Make a list of all important issues and make sure each is raised. She suggests using these items in bargaining even if they don’t take center stage. Don’t wait until a term sheet is circulated to raise non-monetary issues of importance to your client.

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