Case prep 2

Andrew Fraley Ltd.

Mediation

Case preparation p2

Phone: +44 1275 855992

Fax: +44 1275 859080

E-mail: andrew@andrew-fraley.com

Develop a settlement strategy.

Remember that the goal of the MSC is to obtain a settlement and cut off further costs and time. Most cases settle out of court eventually anyway. Your settlement strategy should include a consideration of the following:

Determine your settlement positions on liability and damages. Identify the issues that might cause you to change your mind, such as new or clarified information or the abilities of the other side.

Develop a negotiation plan, including where you want to settle and how you plan to get there.

Plan to offer or demand during the private meetings what you will eventually be prepared to settle for.

At the mediation session don’t insist that the mediator simply act as a messenger, merely shuttling offers back and forth. Allow the mediator some leeway in developing possible settlements. One of the great advantages that mediation has over traditional negotiation techniques is that each side has the ability to test offers without having to disclose a specific amount.

Be candid with the mediator. Assist him in determining the best method of persuading the other side of your position.

Determine if there are any facts that you don’t want to disclose to the other side. If so, either keep them to yourself or tell them to the mediator in confidence. But remember that you are trying to convince the other side that your settlement position is reasonable. If there are facts that the other side will become aware of later and may influence the outcome, you have very little to lose by disclosing them now. It may make a difference as to whether the case settles now or later.

Authority who should attend the mediation session.

Authority can be a very touchy issue in the mediation setting. The give and take and movement that can take place on both sides of the table can be lost if one side lacks the necessary authority to settle. It is thus essential that all sides come to the mediation session with sufficient authority to settle. This means the parties themselves and not just their professional advisers. ALL persons who need to approve the settlement should be present at the mediation session.