Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Page 12
Page 13
Page 14
Page 15
Page 16
Page 17
Page 18
Page 19
Page 20
Page 21
Page 22
Page 23
Page 24
Page 25
Page 26
Page 27
Page 28
Page 29
Page 30
Page 31
Page 32
Page 33
Page 34
Page 35
Page 36
Page 37
Page 38
Page 39
Page 40
Page 41
Page 42
Page 43
Page 44
Page 45
Page 46
Page 47
Page 48
Page 49
Page 50
Page 51
Page 52
Page 53
Page 54
Page 55
Page 56
Page 57
Page 58
Page 59
Page 60
Page 61
Page 62
Page 63
Page 64
Page 65
Page 66
Page 67
Page 68
22 Spring 2015 The Mississippi Lawyer More and more lawyers have gained sig- nificant experience in mediation. Insurers and corporate entities have likewise come to realize that mediation can be a less time consuming and relatively risk free way to achieve closure. This paper will address practical aspects of the mediation process and suggestions for ways to best represent clients in mediation. A. The Need for Mediation There are overcrowded dockets in many of Mississippis Circuit and Chancery Court Districts. In the more pop- ulous counties the time interval from fil- ing to trial date can often be many months. The uncertainties of full dockets motions too long under advisement and trial reset- tings frustrate litigants. These factors oper- ate on both plaintiffs and defendants. Mediation offers parties an immediate forum and a process that focuses on the strengths and weaknesses of the case and provides an opportunity to avoid the trans- actional costs of litigation and the uncer- tainties of trial. Attorneys and judges have come to realize that approximately 90 of civil cases are settled at some point in the liti- gation process. They have learned that the mediation process creates a focus by the parties not previously achieved through routine discovery. This direct focus on strengths and weaknesses promotes reso- lution. Even when a mediation is unsuc- cessful valuable information about the opposing partys evidence legal argu- ments and strategy is often gleaned. B. Become Proficient Representing Clients in Mediation If mediation has become a recognized and entrenched process for resolving liti- gated disputes lawyers representing plain- tiffs and defendants are well advised to expand their knowledge and understand- ing of the mediation process. In mediation lawyers are tasked with the role and responsibility of obtaining the best result for their clients. However in mediation the lawyers role is unique in that he acts as an advocate and a negotiator. Recognizing these dual roles and developing a lawyers skills in each area are keys to successfully representing clients in mediation. Lawyers who are successful in mak- ing an offer they cant refuse have learned to embrace the mediation process. They know to develop a clear strategy and objectives with the client and how to uti- lize negotiation techniques intrinsic to the process. DOS AND DONTS OF A SUCCESS- FUL MEDIATION A. Avoid Mediation When Your Client is not Seriously Interested in Resolution If the facts of the case are such that you are certain to prevail there is probably no reason to mediate absent court order. Likewise mediation will not likely suc- ceed unless both parties are committed to the process. If your client is not committed to resolution it will be difficult to achieve a successful settlement. When this occurs the lawyer should not encourage mediation nor allow the opposing party to gain mis- placed optimism that a mediated settle- ment is likely. Often lawyers and their clients agree to mediation knowing that there is little chance of success. When this occurs lawyer and client both run the risk of damaged credibility with the opposing lawyer and the mediator when the media- tion proves fruitless. B. Dont be Afraid of Your Own Client Before the mediation all aspects of the mediation process should be explained to the client. The lawyers evaluation of the claims and defenses should be laid out for the client in a reality-based fashion. The client should be encouraged to listen ediation is no longer an unfamiliar process for lawyers in Mississippi. The implementation of the Court-Annexed Mediation Rules in 1998 and the volume of litigation in Mississippi courts has made mediation a favored approach to resolution. By Donald C. Dornan Jr. M Tips For Effective Mediation - Making An Offer They Cant Refuse INTRODUCTION