1. If there are significant obstacles to settlement, inform the mediator before the mediation session. 2. If you intend to invite a non-party to the mediation, clear it with the other party or the mediator first. Confrontations at the start over who is allowed to participate are counter-productive. 3. Make an opening statement. But make… Read More
Opening Statements in Mediation… Poisonous or Powerful?
You are serving as lead counsel in a big case set for mediation next week. You have been working on the case for months, conducting written discovery and taking depositions. Now it is time to see if the case can be resolved. The mediator asks whether the lawyers want to make opening statements in a… Read More
Let’s Negotiate… But You Go First!
There’s a memorable scene in the movie Raiders of the Lost Ark, when Indiana Jones and his friend Sallah open the Well of the Souls and peer down: Sallah: Indy, why does the floor move? Indiana: Give me your torch. [Indy takes the torch and drops it in.]Indiana: Snakes….. Why’d it have to be snakes?… Read More
The Value of a Pre-Session Call with the Mediator
A mediator is most effective when he or she understands what is driving a dispute. Knowing what the plaintiff is demanding, or what the defendant is offering, is one thing. Knowing why a party is taking that position is something else. Of course, a good mediator will draw out the parties’ interests through careful questioning and attentive… Read More