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The Mississippi Lawyer Spring 2015 25 tone with phrases such as We believe the jury is likely to conclude . . . If it is nec- essary to make stronger statements explain your reluctance to use harsh lan- guage before asserting your claim. Consider telling the other side that you do not wish to be inflammatory but the medi- ator has requested candor in your opening statement. Then downplay the argument by tactfully reminding the other side of your position but stating that you will save it for trial Were not here to talk about Mr. Smiths past history because we dont think it will be helpful in resolving the case. However if we try the case it is something that the jury will have to hear about. H. Its a Matter of Principle Often parties make remarks such as Im not here to gouge the other side. Or This is not about the money its a matter of principle. Although statements of this nature may sound sincere they are not always helpful. H.L. Mencken once remarked When you hear someone say its not about the money its about the money The same principle applies in mediation. I. Dont Ignore Past Negotiations If settlement negotiations have previ- ously taken place it is difficult to credibly increase the Plaintiffs demand reduce the Defendants offer or attempt to return to an earlier position. Informal discussions between counsel in which evaluation fig- ures are casually mentioned can often erroneously influence a partys view of the other sides position. Even if new informa- tion has come to light which might justify a change in your position such a strategy often inflames the opposing party and rarely aids the mediator. If it becomes apparent that your pre-mediation negotiat- ing position must be changed it is wise to notify the opposing party in advance of the mediation in order to avoid surprise or overreaction. J. Acknowledge the Weaknesses in Your Case Mediation is a process which requires a candid self-examination of the clients case. Mediators will frequently demand that counsel admit those weaknesses in the presence of the client. Credibility may be lost if weaknesses are not acknowledged at least in the private sessions with the mediator. When the client hears the attor- ney acknowledge a weakness it often vic- ariously allows the client to acknowledge it as well. Often attorneys are reluctant to admit weaknesses while the client is pres- ent. Instead they may stretch for arguments to support less tenable positions or attempt to avoid the issue entirely. Experienced mediators however will be able to smoke out such bluffing and evasive answers. K. Substantiate Your Position to the Opposing Party Often lawyers assume prior to media- tion that the facts of the case are clear or that the evidence is undisputed. This is a mistake that can be avoided. In advance of the mediation be sure you have all of the evidence necessary to establish your claims or defenses. Evaluate the strength of the evidence on each element for credi- bility reliability and accuracy. Then be sure the opposing party is provided with documentation supporting your position. It is fundamental to any negotiation that the opposing party must have all the informa- tion necessary to understand and evaluate your position. Too often attorneys wait until the mediation is imminent to provide supporting materials to the opposing party. In personal injury cases medical expens- es hospital records economic reports and life care plans are of no value if they have not been provided to the other party suffi- ciently in advance for review by those who will make the ultimate decision on settle- ment. Anticipate challenges to the accuracy of your evidence by the opposing party and bolster your case if necessary in advance of mediation. This will help pre- vent the other side from arguing that facts which are actually established or irrefutable are in dispute a common medi- ation technique. GETTING PARTIES TO SAY YES Because the mediator is neutral and has no interest in the ultimate outcome of the case he lacks the authority to force one party or the other to settle the case if it is not believed to be in that partys best inter- ests. Likewise arm twisting threats and intimidation by the mediator ring hollow because the mediator is without any adju- dicatory authority over the case. He cannot admit or exclude evidence compel discov- ery or grant summary judgment. Thus it is the mediators effective use of the media- tion process which most often brings the parties to agreement on terms which are mutually acceptable. Some of the methods and techniques which have proven successful in changing attitudes and reassessing expectations Reversal of Roles Sometimes the mediator will ask the lawyers to exchange roles in the case and make the other lawyers best argument. Follow up questions such as If you were representing the other side how Tips For Effective Mediation - Making An Offer They Cant Refuse Continued on next page James D. Harper J.D. M.A. Conflict Resolution and Reconciliation Mediator and Conflict Resolution Consultant Mediating all types of disputes or cases including personal injury commercial healthcare malpractice family and divorce corporate organizational administrative and employment. 662-234-0320 jdhjamesharperlaw.com It is fundamental to any negotiation that the opposing party must have all the information necessary to understand and evaluate your position.