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26 Spring 2015 The Mississippi Lawyer would your evaluation change and If you were representing the other side how would you evaluate your witnesses can bring about a relax- ation of the partys viewpoint. Correct Misunderstood Facts and Law If a partys evaluation of the case is clearly based on a misappre- hension of a material fact or the applicable law the mediator can often break a logjam by diplomatical- ly clearing up the misperception in a balanced and inoffensive manner. Best Case ScenarioWorse Case Scenario Asking each side to articulate their best scenario and their worse case scenario often permits the litigants to see more clearly the wide range of potential outcomes by illus- trating the best and worst that may happen if the mediation falls through. This approach can also add perspec- tive to the other partys last offer. Take aTime Out Sometimes hav- ing the parties take a break from mediation in the same room can break the tension that often builds up in negotiations. The mediator may encourage conversation on some topic other than the case. After a day of mediation talking about sports or grandchildren can relax the partici- pants and sooth emotions. Confidential Disclosure of Bottom Line If both parties will agree this procedure can at least inform the mediator as to whether a gap between the respective negotiating positions can be closed. This approach normal- ly should only be employed later in the negotiation process. With the agreement of both parties each side confidentially discloses their bottom line settlement figure to the mediator. If the figures coincide there is a set- tlement. If they overlap the parties agree in advance that the case will be settled at the mid-point between the overlapping figures. If the figures do not coincide or overlap they remain confidential and the parties remain at their prior negotiating positions. The obvious drawbacks to this approach are that it depends on the willingness of the parties to divulge their true bottom line figures to the mediator and on the integrity of the mediator in maintaining the confidentiality of this information. Bracketing Impasse can some- times be broken through the tech- nique of bracketing. In this approach a party may send a message to the other side through the mediator such as We will move to X if you will move to Y. There are risks in employing this technique. For exam- ple if the opponents response is sim- ply to decline the invitation without more the offering party has revealed a willingness to move to X and gained neither a counteroffer nor any meaningful information about the opponents next move. Parties are often reluctant to agree to the condi- tions of a bracketed offer. Usually the best that can be hoped for is a response such as We wont move to X but if you will move to A we will come to B. Attrition The mediation process can continue for long hours and sometimes this promotes resolution. The parties can be vulnerable to men- tal and emotional fatigue. Occasionally a partys strategy may simply be to wear down the other sides resolve. Although the fatigue factor can sometimes result in agree- ment the mediator must be careful to insure that any final agreement is entered into with the full knowledge and understanding of the parties. CONCLUSION When an agreement is reached through mediation the parties feel a sense of relief on one hand and a degree of satisfaction on the other. This is because they have active- ly participated in crafting the solution to their dispute. Even if a party has some mis- givings this feeling usually evaporates over time resulting in overall satisfaction with the process. Because there are no los- ers in mediation no stigma is created because the parties crafted their own agreement with the assistance of the medi- ator. I Tips For Effective Mediation - Making An Offer They Cant Refuse