Some Observations From Recent Mediations:
1. It bears repeating that preparation is VERY important. This rule applies to the entirety of a trial practice but can be magnified at mediation. If the other side “smells” that you are not prepared at mediation, it detracts from the risk they assign to going to trial. Plus, if you cannot answer basic questions about your case without fumbling, it speaks to the mediator, as well.?
2. Lost opportunities can come back to haunt you. ?A wise lawyer (you know who you are!) quoted the Greek philosopher Heraclitus in a recent mediation:
“No man ever steps in the same river twice, for it is not the same river and he is not the same man.”
His point was that the tenor and focus of that particular dispute had changed so dramatically, due to decisions made by the other party, that the clock could not be turned back to address the “old” dispute simply by the other side saying (and I paraphrase) “Never mind, let’s go back to where we were a year ago.”
It’s a universal truth - actions have consequences.?
3. If you “act” like you’re taking it personally, you are, even if you say you are not. ?Raising the temperature may be necessary to make a point, but don’t do it simply for show. ?The general rule is that the higher the temperature, the higher the effort (on all parts) required to achieve a resolution.?
4. Extremes positions often set the tone, and that’s typically not a good thing. Granted, what one person considers extreme may not be so to others. But having an explainable basis for a demand, offer, and/or position generally leads to a more productive day.?
5. Be as frank with the mediator as you can. If there are delicate issues at play that become all the more delicate if you have to say them in front of others, tell us. ?The same applies if there are external, financial, or constitutional issues that play a major role in your client’s decision-making process. Trust me, it is better to disclose them early than to explain to your client why you asked to speak to the mediator in private after an awkward discussion.?
6. Trust the process. No list is complete without this. If you truly want to resolve a case - and that doesn’t mean your client will cave in - don’t drive a stake in the heart of the process with your actions and reactions. ?
Have a great week!
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J.K. Leonard
Leonard Resolution Services, PLLC?
1150 N Loop 1604 W
Ste. 108-635
San Antonio, TX 78248
210-445-8817
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Attorney - Mediator - Arbitrator at Burdin Mediations
7 个月Well said JK!
Attorney and Mediator at Naman, Howell, Smith & Lee
7 个月JK, Well said. I agree the attorney must prepare the case and herself for mediation, and this should include understanding client expectations and confirming the client's role in mediation.
The Law Office of Brian C. Steward, P.L.L.C.
7 个月JK, I appreciate your comments and I believe that there is a great deal of wisdom shared in this post. As a litigant and a mediator, we somethimes look at mediation as the last opportunity to resolve the case but we do not take into consideration the amount of information that will be necessary to do that. Candor with the mediator is most important but the litigants also have to understand that this process is based upon a system that they probably do not want to understand. The mediator can be invaluable in this process but the mediator cannot save the litigants from themselves. Brian Steward. PS. I only quote rock groups so that could not have been me. "You can't always get what you want...but if you try sometimes...you just might find...you get what you need!". Rolling Stones.