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The Mississippi Lawyer Spring 2015 23 Tips For Effective Mediation - Making An Offer They Cant Refuse closely to the lawyers assessment and to acknowledge the strengths and weakness- es of his case. At the same time the pre- mediation meeting will afford the client an opportunity to express his feelings and ventilate if necessary. The adroit lawyer will provide an empathetic ear and rein- force his confidence in the client while also administering a dose of reality about the case. The client can be the best piece of evi- dence in the attorneys arsenal even though the mediation is informal and non-bind- ing. A credible and impressive client at mediation is just that a credible and impressive client. However the opposite is also true. While it may not be tactful to broach this directly with the client a poor- ly performing client is a factor which should be taken into account in the evalu- ation of the case. It is the responsibility of the lawyer to explain the mediation process to the client. The goal here is to enhance the clients ability to understand what is happening as the mediation unfolds. The client should be prepared to answer questions from the mediator clearly concisely and without hesitation. The client should also be pre- pared to deal with an effective opposing attorney who addresses his opening remarks to the client rather than to the mediator. Here the clients body language and appearance are more important than any words that may be spoken. Dont be afraid to advise the client of the other partys position and the fact that the client may feel threatened criticized or intimidated during the joint session. Explain to the client that the opposing party will not agree with his position on disputed issues and that the client may be angered at the opposing lawyers position statements. Such statements should not be internalized nor allowed to create emo- tional barriers to compromise. Clients are better served when they are prepared in advance for negative information. Prior to the mediation explore with your client the process of negotiation. The idea that settlement requires negotiation and negotiation requires compromise should be explained and encouraged. C. Develop a Strategy Attorneys who have consistently achieved good results in mediation have followed at least two rules. First they have made a realistic evaluation of the potential settlement and verdict ranges of their case along with the risks of proceeding to trial and will have discussed them fully with their client. Additionally successful attor- neys devise a negotiation strategy similar to a game plan which will help them reach their objective. A cogent discussion of the risks and ramifications of trial and other potential weaknesses will be critical to establishment of a realistic mutual goal. If the clients confidence in his lawyer is adversely impacted when he learns for the first time during mediation of some risk such as summary judgment or puni- tive damages which was not explained earlier the lawyer has failed. An experi- enced mediator is likely to ask about these issues. Therefore the lawyer is well advised to have the client prepared for and ready to discuss all potential pitfalls. The mediation game plan should be made in advance yet be flexible enough to account for the opponents actions. Preparing the client and obtaining suffi- cient settlement authority are important aspects of the overall strategy. Access to the client and lines of communication to other persons with authority should be established in advance. D. Working With the Insurance Adjus- ter or Company Representative Be sure that your client andor person who will make settlement decisions is present at the mediation. Many times insurance claim representatives and com- pany representatives are unwilling or not permitted to travel to the site of a media- tion. The defense lawyer should always encourage personal participation and attendance. Although the mediation can proceed with the company representative participating by telephone most mediators believe that personal participation increas- es the likelihood of resolution. Advantages include the ability to make a personal assessment of the opposing party and the demonstrative commitment to settlement inferred by the willingness to travel to the location of the mediation. A disadvantage of remote participation is that it is often too easy for a representative to shut down the negotiations if they are not required to face the mediator or opposing party. E. Be Punctual Courteous and Atten- tive The mediation date is an important event in the life of any lawsuit. It should be treated with the same level of importance as a court hearing. Lawyers and their clients should be on time for the media- tion. Tardiness and last minute scheduling conflicts are poor excuses and do not enhance the credibility of the lawyer or the case. Nothing gets a mediation off to a poorer start than for the lawyer to be late while his client sits patiently awaiting his arrival. In addition to being unprofession- al tardiness rarely promotes resolution. F. The Joint Session A typical mediation begins with a joint meeting of all participants presided over by the mediator. The mediator usually delivers a brief preamble and overview of the mediation process and secures a com- mitment to proceed from the parties. The mediator will customarily invite each party to make an opening statement or position statement. This is the time when counsel are allowed to set forth a summa- Continued on next page LACOSTELACOSTE ARCHITECTARCHITECT JAY LACOSTE CONSTRUCTION PREMISES LIABILITY 2349 TWIN LAKES CIRCLE 601 981-2853 JACKSON MS 39211 VIVIZODAOL.COM