Mediation Review – Part IV

Generic Checklist for Party and Counsel Substantive Preparation

• Explain to the client what the process is about – facilitated settlement negotiation; not a hearing on the merits
• Discuss and agree upon roles as between disputants, counsel and other participants
• Outline what the case is about from the client’s perspective
• Consider and contrast how you think the other side sees the dispute
• Is there any common ground / Are there any shared issues or objectives?
• Outline and prioritize your negotiating goals and assess what’s in it for the other side?
• What do you think the other side wants and is there anything you’d be willing to give them?
• Outline and prioritize what you want to have discussed relative to the dispute
• Analyze your best case scenario and best NET recovery
• Analyze your worst case scenario and don’t forget to factor in liability for prevailing party costs of suit and maybe even attorney’s fees
• Analyze the time, dollar and lost opportunity cost of resolution in the courts – Is there something else your client would do with its time, money and resources that would produce greater value than what can be obtained through the litigation? Look at the litigation as an investment or a loss prevention strategy and ask whether it pencils out.
• Read the other side’s brief (if shared) and outline a response
• Develop a multi-step negotiating plan and be prepared to tie reasons to any and all proposals
• Prepare client for multi-step negotiation / not a two-step process
• Practice and prepare your opening presentation – even if just to the mediator – what is it there you’re pitching the mediator for? What is it that you want or expect the mediator to do with the information you include in your presentation?
• Prepare a draft settlement agreement, especially if your client has certain boilerplate provisions it requires in its settlement agreements
• Give consideration to what roles you might want the mediator to play – with you / with your client / with the other side