By Christina L. Scott, J.D. Pre-mediation conferences can be a very effective tool to use in getting your cases settled. These types of conferences are permissible, unlike in litigation or arbitration where ex parte communication is not allowed. These conferences can take place with each side prior to the start of mediation or scheduled days in advance. Counsel should treat this conference as a “heads up” call to the mediator, not as an opportunity to advocate for your clien

by Christina L. Scott Mediation position papers can be very helpful to the mediator in civil and commercial disputes. These papers are usually confidential in nature and the contents are never revealed to the opposing party without express permission. Position papers, however, do not have to be confidential. Both parties can agree to exchange papers with each other and the mediator. When drafting a position paper, be sure to write it persuasively and not just provide a resta

by Christina L. Scott, J.D. I once heard an attorney in a mediation say, “I feel like I’m losing.” Many thoughts flashed through my brain in a matter of seconds. My simple response was reminding counsel that it was not her case and so long as the parties agree, they could decide to settle the case however they desired. Sometimes, it is easy for good attorneys to be caught up in “feelings” during mediation. After all, attorneys are advocates and are highly motivated by winn

By Christina L. Scott, J.D. Before your next mediation, consider these pre-mediation tips to ensure your mediation day is positive and effective. Client Preparation Unprepared parties can be a hindrance to the mediation process if they arrive with no clue as to what issues are going to be discussed. When I was mediating a divorce case recently, plaintiff made an offer regarding the joint bank account. When I presented to the defendant, to my surprise, they didn’t know that th

By Christina L. Scott, J.D. 1. An Open Mind Coming to mediation determined that you will have your way is a recipe for failure! Mediation is a give and take, and both sides cannot have their way on all issues. The underlying spirit of mediation is compromise and at times collaboration and brainstorming, not litigation. Preparing your client ahead of time for this attitude is key. 2. Crucial Documents Recently I was involved in a mediation where the issue was the amount

By Christina L. Scott, J.D. Practicing attorneys know that sometimes clients will have unrealistic and unreasonable ideas about what they can settle for in a lawsuit. These are the people that think because they’ve been injured or wronged in some way, they will get exactly what they want. After all, that’s what happened on the last episode of “Suits”! Dealing with them in mediation can be a challenge when they refuse to listen to you about their case. Here are a few tips t

Perhaps one of the greatest impediments to resolution in mediation is the timing of when the mediation occurs. A mediation that is set to happen too soon, too late, or at the wrong time, can be a real disaster. If the mediation happens before the end of discovery period or prior to dispositive motions being filed, parties are typically not as motivated to settle. This is usually because parties feel that something might happen in their favor, post mediation. The reality is,

Selection of the Mediator One of the central tenants of mediation is agreement by all parties involved. Did you know that this also includes the selection of the mediator? Yes, if parties are to successfully mediate, they must all agree to use the suggested mediator. Most attorneys have a list of preferred mediators that they believe to be good mediators based on their experience with them. Other attorneys may seek referrals for mediators from other colleagues in their prac