Mediation Review – Part III

Mediation is an evolving process and has grown in many regards over the past 20 – 30 years. It started off as something that looked an awful lot like a Mandatory Settlement Conference where the primary technique used by the judge was good, old fashioned arm twisting, keeping in mind that he or she wore a black robe and sat in the chambers of a courtroom with a flag and a bailiff with a gun.

Settlements facilitated through mediation are much more than that now. Most would agree that mediation has become a component part of the modern civil litigation; that it is the rare case that is filed without some thought being given to when – not whether – to go to mediation. Part of that development is certainly due to the courts’ embrace of mediation. When judges say it’s OK for them, the legal profession generally follows suit.

Negotiating in a mediation setting has become quite sophisticated as compared to 20 years ago because everyone – counsel, judges, insurers, mediators and frequently the parties -– have had LOTS of experience. Lawyers being lawyers, we’re always thinking, plotting, planning. As a result, negotiating in a mediation setting has become more strategic and thus requires more planning and preparation all round the table – by attorneys, parties and even mediators!

The following are some thoughts on what parties and counsel might want to consider relative to preparing for their next mediation….

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Mediation – The Need for Strategic Preparation