By Kevin Diamond
Mediations are a critical tool for attorneys. It is not uncommon for litigants to need an independent third party to assist in trying to reach a settlement. Mediations should not be taken lightly, as even if a case fails to settle, the parties typically will resolve some of the issues, and/or learn more about their case. Attorneys must be prepared for a mediation to be effective. Here are five things that should be done to prepare.
ONE – Obtain a demand/offer. Showing up at a mediation without knowing the other side’s initial demand/offer is a recipe for disaster. The expectations of the parties cannot be tempered, reserves cannot be set up, liens cannot be evaluated or negotiated, etc. Further, if an opening demand/offer is too high/low, there may be a decision to not even hold a mediation.
TWO – Review your file. Most attorneys generally know the facts of their case, or at least key facts. That is not enough for mediation. Arguments will be made to [and sometimes with] the mediator. The more information you have at your disposal, the stronger the arguments will be. It never fails that there will be some forgotten or misrepresented fact by one or both sides which needs clarification. Plus, a thorough file review will assist in drafting a solid mediation brief.
THREE – Close loops. There is nothing worse than showing up at a mediation and being handed new evidence. It unravels the preparation and frustrates an adverse party from the beginning. When you first know that a mediation will occur, you should produce everything which has not been provided, and obtain all evidence you can to provide. Further, ask the adverse party for all outstanding evidence you need to evaluate the case.
FOUR – Prepare your client. Do not just tell your client when to show up. Explain the mediation process and describe the people who will be involved, including the mediator. Go through arguments and case theories. Also, discuss case and settlement value evaluations, and how those were reached.
FIVE – Call the mediator. Yes, you can actually call the mediator before the mediation. The mediator is not the trier of fact, and not the judge in your case. If a mediator will not take the time to speak with you pre-mediation, use a different mediator. Ask the mediator for his/her questions or concerns. Help the mediator prepare. For example, tell the mediator if there are any “hot button” topics, or if there are any crucial disputed facts or evidence. Also, let the mediator know who will attend, and the personalities of the attendees.
Best of luck at your next mediation!
About the author
Kevin Diamond grew up in Las Vegas and is a Shareholder at Thorndal, Armstrong, Delk, Balkenbush & Eisinger. He has practiced as a civil litigator since 1993. He serves as a Short Trial Judge, Arbitrator, Mediator, and is a CAP (Children’s Attorneys Project) attorney for LACSN (Legal Aid Center of Southern Nevada).
About the article
This article was originally published in the Communiqué (Jan. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-jan-2024/.
© 2024 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.