South Carolina Lawyer
SC Lawyer, November 2007, #4.
A Mediator's Viewpoint: Do's And Don'ts For Advocates
South Carolina LawyerNovember 2007A Mediator's Viewpoint: Do's And Don'ts For AdvocatesBy Robert W. Hassold Jr.Although the public and your clients may refer to some of you as trial lawyers, advocates or litigators, in truth, you often feel like "fireman" is a more appropriate moniker given the pace of a litigation practice in today's world.
Mediation affords you and your client an opportunity to resolve a case, but it is still one more deadline to meet in an already cramped schedule. However, since mediation is an extension of the negotiation process, the better prepared you are, the better the potential result for your client.
After mediating approximately 1,400 cases in a statewide mediation practice, I want to pass along some observations and tips to help you and your clients maximize the opportunity afforded by mediation.
DO "set the table" for meaningful negotiations:
Understand your case backward and forward. If you don't, it will become readily apparent to your client and others at the mediation.
Meet with your client prior to the mediation and:
· Take time to understand your client's interests (i.e., their hopes, goals, fears and concerns) and explore their view of the opposing party's interests. Ideally, any resolution reached at mediation should attempt to meet the parties' interests. If you don't know what they are, it will be difficult for you to fashion a resolution that is satisfactory to your client.
· Find out who "owns" the dispute within your client's family or organization - it may be someone behind the scene whose approval, input or presence will be required at the mediation. Their absence or lack of input will stifle negotiations.
· Explore all alternatives and options to resolve the dispute. Are there any options other than money or attractive alternatives using assets or situations outside those involved in the present dispute?
· Decide who will attend the mediation - you may want to bring a key witness or expert, particularly in disputes where little if any discovery has taken place.
· Make sure that one of the individuals who will attend the mediation has the authority to settle the dispute. If not, make sure opposing counsel and the mediator consent to the situation. In...