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How to Make the Most Out of Court Required Mediation

Date: 5/29/12

Mediation is the fastest growing, and most widely used, alternative dispute resolution method in the country.  Many courts now believe that mediation increases the chances of settlement without greatly increasing the costs to the parties, and often require that disputes be mediated before they are heard in court.  Whether your participation is voluntary or court-ordered, it makes sense for you to take advantage of and fully utilize the mediation process.  The following tips will help you maximize your chance of having a successful mediation – or at least not wasting your time:

1. Prepare.
A mediation is not a trial, but it still requires careful preparation.  Don’t expect to just show up and wing it.  Have a conference with your attorney to discuss, at a minimum, the following:  a) the strengths and weaknesses of your case; b) the costs involved in ongoing and threatened litigation; c) the obstacles to settlement, from your side and the other side; and d) the primary areas of dispute.  Above all, determine what you really want, what you can live with and what possible solutions there might be to resolve the dispute.  Remember, in a mediation the parties can settle issues that are not before the court, and can agree to solutions that a court cannot order.  You will want to give some thought as to what those alternative solutions might be.   Even if the mediation is not “successful” in the sense of resolving the matter, careful preparation will give you a more realistic view of the dispute and your risks, assist you in presenting your position to a court or to a jury, and help you understand the other party’s strategy.

2. Understand that Mediation is a Process.
While mediation is a facilitated negotiation, you generally don’t start negotiating as soon as you arrive.  It can be frustrating if your style is to “get to the point”, but mediation is a process and it has its own unique steps that must be followed in order for the process to work.  Typically, before negotiations begin the parties sit down with the mediator, together or separately, and have a conversation aimed at developing a broader view and understanding of the dispute.  What happens next usually depends on the mediator and the respective parties’ preferences.  Sometimes the parties mediate the case “face-to-face” while other times each party goes to a separate room and the mediator engages in “shuttle diplomacy,” acting as a liaison between the parties.  Regardless of how the mediation is structured, the mediator’s job is to keep everyone talking and moving toward an agreement.

Mediators use various techniques to open, or improve, dialogue between the parties in order to assist the parties reach an agreement.  You should use the mediator to get realistic feedback on your case.  It is normal for parties to want to only consider the facts that are favorable to their own case, while discounting the facts that are unfavorable.  If you avoid this trap and listen to the neutral feedback of the mediator, however, you will better understand how the strengths and weaknesses of each party’s case may ultimately play out in court.

In most cases, a successful mediation resolves a dispute by finding a solution that best meets the parties’ individual and joint interests.  If you come to the mediation prepared to expand your discussions beyond the legal issues and litigation positions taken so as to include discussion about each party’s interests and needs, you will significantly increase the chances of achieving a settlement.  Again, even if the mediation is not successful, keeping an open mind during the mediation will give you a more objective, nuanced view of your litigation position.

3. Avoid Landmines.
Be careful not to unintentionally sabotage your ability to get the most out of the mediation by signaling to the mediator or the other party early in the mediation that you are not open to discussion and/or compromise.  Remember a dispute can only be settled during a mediation when everyone agrees.  When parties are in disagreement over the facts, applicable law, or the credibility of evidence, some level of negotiation and compromise must occur in order for the parties to navigate around these obstacles.  It is common for parties to disagree about the merits of the dispute, but still find a way to talk about and negotiate terms for a settlement.    Even if you believe strongly in the facts and law in support of your position, an inflexible refusal to negotiate at all is seldom if ever in your long-term interests.  Use the time you have to enhance your understanding of your case and the other party’s position – an opportunity that can be lost if you rush to issue ultimatums.

Given the growing popularity of court-ordered mediation throughout the country, it is likely that most, if not all, sporting goods manufacturers will find themselves attending a mediation at some point in time.  Following the tips above will help you take full advantage of the opportunities afforded by the mediation process. 

Article By:
Michael Paul, Associate
Hall and Evans, LLC
paulm@hallevans.com

Article By:
Darin Lang, Partner
Hall and Evans, LLC
langd@hallevans.com

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