Mediating with and without Lawyers

AuthorVictoria Pynchon/Joe Kraynak (With)
ProfessionMediator, author, speaker, negotiation trainer, consultant, and attorney with 25 years of experience in commercial litigation practice/Professional writer who has contributed to numerous For Dummies books
Pages83-96
Chapter 5
Mediating with and
without Lawyers
In This Chapter
Assisting attorneys in mediating their litigated cases
Going beyond money rewards to find solutions
Knowing the dangers of giving legal advice
Mediating nonlitigated cases without a safety net
M
ediators deal with two types of cases — litigated and nonlitigated,
each of which requires a different approach. With litigated cases, the
parties consider at least two possible outcomes — what happens if they win
the case and what happens if they lose. Most parties are optimists, so they
usually focus more on what they stand to gain than what they stand to lose,
which is one of the reasons they hired you.
With nonlitigated cases, the parties are often unaware of possible outcomes,
including the possibility of hiring a lawyer and suing someone. Though
they’re focused on what they believe to be fair and unfair, they often don’t
know their available legal rights and remedies. They generally have an easier
time focusing on their interests (their needs, desires, priorities, preferences,
fears, and the like) than on the narrow set of facts that may lead to victory
or defeat in a legal proceeding. Nonlitigated cases require a different kind
of preparation on your part and the drawing of firm boundaries to ensure
that you don’t compromise your neutrality or engage in the practice of law
(regardless of whether you’re a lawyer).
This chapter explores the differences between mediating litigated and nonliti-
gated disputes and shows you how to effectively approach each type.

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