Litigation & Arbitration

Mediation - any tips on how to speed up mediations to get each side to its highest offer / bottom line number?

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I tell clients that they should expect to spend the entire allotted time (1 day, 2 days, 3 hours, whatever) mediations that that trying to speed things up means getting a worse deal. In my experience that’s almost universally true, mostly because people don’t focus and get serious until they start looking at their watches and worrying about flight times, picking up kids from daycare, or whatever. It’s also true because many clients need the catharsis of being heard ad nauseum and then being worn down before they’re willing to strike the classic deal - one in which neither side is fully satisfied. So, I’d say your first strategy should be to show extreme patience while at the same time figuring out how to effectively use the time and any impending hard stops to break the other side’s will, rather than trying to rush. That say, if you want to get to it: 1. Ask the mediator to conduct a pre mediation call with each life’s lawyer and primary client negotiator, to cover fact exchange and preliminaries before everyone gathers. 2. Write a great mediation statement that is clear, easy to read, and well supported, and consider sharing most or all of it with the opponent before the mediation. 3. Be comprehensive in your first offer so later -added terms (especially unusual settlement agreement terms) don’t stall progress when they are introduced too late in the process. 4. Make your offers responsible and don’t drag your feet when it’s your turn. Prepare your client for what you’re going to hear from the other side at each move and have a reply ready. 5. Consider using brackets before you get to an impasse, to allow for larger movements. 6. Don’t be afraid to step out into the hall with the opposing lawyer and say “what can we do to accelerate this? If I do X can you get your side to do Y.” 7. Don’t hide the ball from the mediator (whom you’ve picked because you trust him/her). Ask “What does our side have to do to get the other side to do X?” Without more facts that’s all that comes to mind. Good luck!

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I’m impressed with your answer. Well done!

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Getting to Yes is a great quick read, even if a little old by now. My trick is to spend some time reading the room and then see if you can avoid the law questions and go straight for what can be offered. Think outside the money box as well - there’s always other options to help parties settle.

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