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TACTICS AND STRATEGY IN MEDIATION
TACTICS AND STRATEGY IN MEDIATION
Robert A. AllenALLEN, STEIN & DURBIN, P.C.
William J. Maiberger, Jr.WATTS LAW FIRM, L.L.P.
ALTERNATE DISPUTERESOLUTION
ALTERNATE DISPUTERESOLUTION
The Art of Selling a Horse
Whether you are in a
HIGH STAKE MEDIATION or
LOW STAKE MEDIATION
BE THE COYOTE AND
THE SHEEP DOG
1
Why Mediate?
2
Cases Ripe for
Mediation
3
Strategic
Timing
4
Selecting a
Mediator
5
TACTICS TO USE
DURING
MEDIATION
THE MEDIATIONTOOL BOX
BENEFITS OF MEDIATION V. LITIGATIONBENEFITS OF MEDIATION V. LITIGATION
Allows a quicker method of resolution
Mediation is less expensive than trial
Allows corporate parties to maintain their relationship
Allows a neutral party to remove or diminish animosity, confrontational actions and attitudes
MEDIATION WORKS!!!!
Allows a quicker method of resolution
Mediation is less expensive than trial
Allows corporate parties to maintain their relationship
Allows a neutral party to remove or diminish animosity, confrontational actions and attitudes
MEDIATION WORKS!!!!
SELECTING A MEDIATORSELECTING A MEDIATOR
Choose the mediator based on individual reputation in legal community
Must be effective and not merely a message carrier
IF DEFENSE CASE IS STRONG - use former Plaintiff attorney to add credibility to the Plaintiff’s weaknesses
IF DEFENSE CASE IS WEAK - use a mediator that does not have a strong Plaintiff background and that will minimize damage valuation
IF PLAINTIFF CASE IS STRONG - take first choice for mediator made by Defendant
IF PLAINTIFF CASE IS WEAK - pick mediator that will be your advocate.
DO NOT CHOSE A MEDIATOR BASED ON SAVING MONEY
Choose the mediator based on individual reputation in legal community
Must be effective and not merely a message carrier
IF DEFENSE CASE IS STRONG - use former Plaintiff attorney to add credibility to the Plaintiff’s weaknesses
IF DEFENSE CASE IS WEAK - use a mediator that does not have a strong Plaintiff background and that will minimize damage valuation
IF PLAINTIFF CASE IS STRONG - take first choice for mediator made by Defendant
IF PLAINTIFF CASE IS WEAK - pick mediator that will be your advocate.
DO NOT CHOSE A MEDIATOR BASED ON SAVING MONEY
STRATEGIC TIMING(Mediating Early v. Late)
STRATEGIC TIMING(Mediating Early v. Late)
Timing is critical to achieving a favorable settlement
Fact or Myth - Mediating early yields a higher settlement, but saves substantial litigation costs
Fact or Myth - Mediating late yields a lower settlement, but much more has been expended in litigation costs
IF DEFENSE CASE IS STRONG - mediate only after the completion of significant discovery
IF DEFENSE CASE HAS A SMOKING GUN OR UNRELATED BUSINESS VULNERABILITY - mediation prior to significant discovery
IF PLAINTIFF IS VULNERABLE FROM A FINANCIAL STANDPOINT - mediate early
FROM A PLAINTIFF PERSPECTIVE, MEDIATE EARLY, LATE AND OFTEN.
Timing is critical to achieving a favorable settlement
Fact or Myth - Mediating early yields a higher settlement, but saves substantial litigation costs
Fact or Myth - Mediating late yields a lower settlement, but much more has been expended in litigation costs
IF DEFENSE CASE IS STRONG - mediate only after the completion of significant discovery
IF DEFENSE CASE HAS A SMOKING GUN OR UNRELATED BUSINESS VULNERABILITY - mediation prior to significant discovery
IF PLAINTIFF IS VULNERABLE FROM A FINANCIAL STANDPOINT - mediate early
FROM A PLAINTIFF PERSPECTIVE, MEDIATE EARLY, LATE AND OFTEN.
GAME TIME(Mediation Tactics)
Opening Statement
Tactics DuringMediation
Closing theMediation
KNOW YOUR OPPONENTKNOW YOUR OPPONENT
Research Trial Tendencies
Jury Selection Opening Statements Witness Examination Closing Arguments
Research Trial Tendencies
Jury Selection Opening Statements Witness Examination Closing Arguments
Research Verdict History Texas Trial Reporter The Blue Sheet
Research Verdict History Texas Trial Reporter The Blue Sheet
BE PREPARED - Do not be “lulled” into “winging” mediation
-a weak Plaintiff will continue litigation due to defendant’s perceived incompetence
-plaintiff will perceive lack of interest
Have a complete understanding of the facts, the law and the evidence
The client should be well educated on the facts, the evidence and their role during the mediation
Plaintiff/Defendant - optimize your first impression and only opportunity to address the decision maker.
Plaintiff - USE TECHNOLOGY LIBERALLY
BE PREPARED - Do not be “lulled” into “winging” mediation
-a weak Plaintiff will continue litigation due to defendant’s perceived incompetence
-plaintiff will perceive lack of interest
Have a complete understanding of the facts, the law and the evidence
The client should be well educated on the facts, the evidence and their role during the mediation
Plaintiff/Defendant - optimize your first impression and only opportunity to address the decision maker.
Plaintiff - USE TECHNOLOGY LIBERALLY
Mediation Presentation
(A mini-trial)
Mediation Presentation
(A mini-trial)
• Can be effectively used during mediation
-Can They Help Your Case?
-Can They Hurt Your Case?
-What About Cross Claims?
-What about Non-Suits?
• It is critical to understand party alignment prior to negotiations
CO-PLAINTIFFS/CO-DEFENDANTSCO-PLAINTIFFS/CO-DEFENDANTS
Case Specific Negotiation
Case Specific Negotiation
• Appropriate use of Mediator
• Business solutions
• Playing portions of JuryFocus groups in mediation
• Contingent settlements
• High low agreements
• Appropriate use of Mediator
• Business solutions
• Playing portions of JuryFocus groups in mediation
• Contingent settlements
• High low agreements
Closing the MediationClosing the Mediation
• Length of Mediation
• Should you agree to reconvene the mediation
• A Plaintiff should never leave the mediation first
• A Plaintiff should always understand whether it is a final offer
• Length of Mediation
• Should you agree to reconvene the mediation
• A Plaintiff should never leave the mediation first
• A Plaintiff should always understand whether it is a final offer
The Art of Selling a Horse
Whether you are in a
HIGH STAKE MEDIATION or
LOW STAKE MEDIATION
BE THE COYOTE AND
THE SHEEP DOG
END