LEONARD P. REINA, P.A. 
  
  

                                           ATTORNEY & MEDIATOR


  

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              Ten Mediation Do's and Don'ts

Now that mediation is a permanent part of the litigation landscape, trial lawyers must learn to deal effectively not only with the process of mediation, but with the mediator himself.

The following is a list of ten do's and don'ts that should make mediation more effective:
1.  Always remember to treat the mediator kindly.  While the mediator does not make a decision like a judge, he does have some influence on the resolution of the case. Any experienced trial lawyer knows that it is a lot easier for those lawyers who have a good relationship with others, such as, clerks, bailiffs and other players in the litigation process and the same holds true for mediators.
2.  Always prepare a mediation summary for the mediator in advance of the mediation.  You will be better organized, the mediator will be more effective and your client will appreciate receiving a copy of it.
3. Don't use the mediator as an errand boy to shuffle back and forth with offers and counter-offers.  Give the mediator the reasons and rationale for your offers and counter-offers  so that he can be more persuasive when dealing with the other side.
4. Prepare your client for settlement in advance.  As we all know, settlement means each side taking something less than they believe they are entitled to.  Insisting on all that you are entitled to leaves no incentive for the other side to settle and only insures that there will be a trial.
5.  Always put your settlement agreements in writing, otherwise, they are not binding and leave sufficient time to negotiate during this process, because oftentimes when the settlement is put in writing, there are matters that need clarification.
6.  Don't forget to include attorney's fees for enforcement of the settlement agreement.  While this is a double-edged sword, it has helped convince people that it is probably better to go along with what has been put in writing rather than argue about it, unless there is a major dispute.
7.   Consider getting a cost deposit from a client for mediation up-front.  The mediator does not know your client and is not offering his services to your client, but is generally offering his services to you as an attorney, whom he will look to for purposes
of billing.  Getting a cost deposit will insure that you will be able to pay the mediator in a timely manner and not receive bills marked "past due."
8.  Remember to let your client talk during mediation.  The mediation process works partially because it is an opportunity for the parties to actually get some things off their chest and also helps enlighten each side on the other party's point of view, which can be instrumental in resolving a dispute.
9. Try to resolve all contingencies before mediating.  In other words, if you are waiting on an expert's report, it would probably be more fruitful to schedule your mediation after actually receiving the expert's report.  The same is true of expenses, damages and witnesses' statements.  It is possible to mediate cases before they are fully developed, but usually that is done early on when neither side has done all of their homework and accordingly, both sides are at the same disadvantage.  This is not the same as when a case is on the trial docket and you are mediating a week or two prior to the trial., when each side is expected to have completed discovery and be prepared for trial.
10. Have all  of the necessary documents that you are going to need in order to be persuasive at the mediation.  Don't expect the other side to take your word for what a witness will say, get an affidavit and bring it with you to the mediation.
Conclusion:  Learning to deal effectively with the mediation process is an advantage that a trial lawyer cannot afford to miss.  The more that is put into being prepared for a mediation, the more likely the outcome will be a fair and reasonable settlement.  However, even cases that do not settle at mediation are advanced because mediation at a minimum can result in a form of discovery and a way of becoming more knowledgeable about your case.



"Over-Advocacy" Barrier to Successful Mediation

35 years experience and several thousand mediations have led me to the thought that the single most significant obstacle to successful dispute resolution through mediation is "over-advocacy" - excessive effort to obtain more concessions from the other party than are realistic or acceptable under the circumstances.  Well-trained, highly successful attorneys for one or both parties fall into this trap, perhaps as a consequence of the very training and well-developed skills that enable them to be formidable adversaries in court.  Unfortunately for the client, who likely hired the attorney to advocate on his behalf to the "nth degree", over-advocacy at mediation leads to false hopes and eventual disappointment and causes his attorney to appear insincere or inept.

Justice through our court system is expensive in terms of both time and money, as well as citizen commitment if a jury is involved.  For these reasons it is in everyone's best interest to settle matters outside the court system whenever possible.  Mediation offers an attractive alternative because it is faster, less expensive and more predictable than jury decisions.  However, mediation requires a different mind set and approach than does a trial.  Instead of the prevailing party "beating" the opponent through research, knowledge, discovery, testimony, presentation and persuasiveness, the parties participate in a forum under the guidance of the mediator where they attempt to negotiate a settlement based on what they can accept... whether or not  they may be entitled to more or could have gotten more in a court of law.

Many otherwise good lawyers are unsuccessful at mediations because they mistakenly believe that they should be attempting to get more than their client's fair share at a mediation conference.  Consider the following personality types:

     The born litigator who smells victory in every case and looks forward to trial;
     The "controller" who wants to micro-manage the universe;
     The single-dimensional individual incapable of deviating from the advocacy role;
     The inexperienced attorney or unprepared attorney unaware of the value of the case.

Any of these personality types may be inclined to over-advocate.  In contrast, the better lawyers know the difference between a good deal and a bad deal - and know that their opponents also do.  They understand that over advocating only prolongs the mediation process, increases the level of stress and diminishes the chance of success. 
Lawyers who over-advocate run the risk of an impasse.

The mediation process is no more likely to produce the perfect result than a trial.  Accordingly, there is no "right" result but only a resolution that the parties can agree to live with.  People settle lawsuits for innumerable reasons, and it is a mistake for a lawyer to assume that he knows best what should motivate a client to resolve a case at mediation.  The deciding factor may not be, and usually is not, the financial bottom line.  The majority of cases settle for less tangible issues, such as the stress of litigation, the time consumed, the cost and the uncertainty of the possible trial outcome.  
Lawyers must allow their clients to settle cases on terms that the client is comfortable with, not the terms that the lawyers is comfortable with.

To obtain a successful outcome in mediation, trial lawyers must put aside their extensive training and courtroom experience and be ever mindful not to over-advocate their client's position to impasse. 
The client must be free to settle a dispute regardless of whether or not the lawyer believes it is the best deal the client can get, provided that the client is doing so knowingly, freely and voluntarily.

The mediation process is not a process intended to result in a winner at a loser's expense, but rather to be a win-win (or if youre a cynic, a lose-lose).  It is a collaborative effort where the skillful mediator fosters an evnironment where the parties feel that it is OK to settle their disputes without having to prove who is right or to get the perfect result, and that it is OK to accept less than may be deserved.  Thankfully, the best attorneys rarely interfere with this approach.




Mediation vs. Arbitration vs. Litigation
What's the Difference

Everyone in our society is familiar with litigation and its ramifications.  One party hires an attorney and files a lawsuit requiring the other party to also hire an attorney and defend the lawsuit.  Anyone who has ever been involved in litigaion knows that it is expensive, time consuming, emotionally draining and unpredictable.  With litigation, until a judge or jury decides who is right and who is wrong, you are never certain of the outcome.  Alternative dispute resolution, including arbitration and mediation, has been gaining in popularity as a method to remedy some of the shortcomings of litigation.  However, there is some confusion by the general public as to the difference between arbitration and mediation.

Arbitration and mediation are similar in that they are alternatives to litigation, or are sometimes used in conjunction with litigation to attempt to avoid litigating a dispute to its conclusion.  Both arbitration and mediation employ a neutral third party.  It is customary to employ mediation as a non-binding procedure and arbitration as a binding procedure.  Arbitrators generally act similar to a judge and make decisions about evidence and give written opinions, which can be binding or non-binding.  Although arbitration is sometimes conducted with one arbitrator, the most common procedure is for each side to select an arbitrator and for those two arbitratiors to select a third arbitrator.  The dispute is then presented to the three arbitrators chosen, with a majority of the arbitrators rendering a written decision.

Mediation, on the other hand, is generally conducted before a single mediator who does not judge the case but helps facilitate a discussion and eventual resolution of the dispute.  Mediation has most recently been re-discovered across the country, and in particular in Florida, a leader in the implementation of mediation, where almost all lawsuits are required to be mediated before a court will allow them to be put on the trial calendar.  Mediation has been found to be effective in resolving approximately 75% of all cases and greatly reduces the trial docket of courts throughout Florida.  Mediation enjoys such a great success rate partly because the parties are brought together in a neutral environment where they can freely and confidentially present their position in front of a neutral third party who then attempts to limit the issues and put them in perspective.  Participants often feel much better after having an opportunity to get things "off their chest", and also benefit from hearing the other party's point of view, because as they say, "there are always two sides to a pancake, no matter how thin it is."

Mediation can be used for literally any kind of dispute and there is no need to wait until a dispute results in a lawsuit and is ordered to mediation by a judge.  Pre-suit mediation is becoming more widely accepted as a sensible way of resolving disputes before they turn into litigation, especially when the parties are motivated to resolve their disputes without the extra incentive created by a lawsuit.  Besides being confidential and non-binding, mediation is relatively quick and inexpensive when compared to actually litigating a dispute.

The State of Florida has established a procedure for certifying mediators who have attended a course of instruction on mediation, followed by an apprenticeship.  While in a non-court context, anybody can be selected to mediate a dispute, the use of a Florida court certified mediator insures a minimum level of expertise and experience and is probably the only real option available for parties wishing to mediate pre-suit disputes.

Please note that while most certified mediators are attorneys, they will not give legal advice during the mediation and do not make legal conclusions about the merits of either party's position.  However, if the parties come to an agreement, the parties themselves will put the agreement in writing and sign it so that it then becomes a binding contract.

Those wishing to mediate a dispute should enter into a simple contract.   The parties should agree that the mediation be confidential and non-binding.  The parties should also agree on who will conduct the mediation and how the mediator will be paid, which is generally borne equally by each party.  An additional requirement that is implied is that the parties agree to mediate in good faith until such time as either party determines that it is fruitless to continue.  If the parties cannot reach an agreement, the mediation will result in what is known as an impasse.

If the parties have a dispute that they think may be appropriate for mediation, they may wish to contact an attorney to further advise them about mediation vs. litigation and about locating a mediator.  If the parties are without counsel and wish to mediate on their own, the Florida Bar Association should be able to tell them which lawyers in their area are certified mediators.  They can contact a mediator and schedule an appointment.  Most mediations will require several hours of a mediator's time in order to get through the preliminaries and make any real progress.  More often, mediations are scheduled as either half day mediations or full day mediations.  The current cost of the mediatior generally runs between $200.00 and $400.00 per hour, which is split by the parties.

In conclusion, the use of mediation is an attempt by society to get back to the old traditional ways of resolving disputes, where people attempt to resolve their differences  between themselves rather than relying on the judicial system.  Mediation is highly effective, and while it has been under utilized for quite some time, it has now become a permanent part of the litigation landscape.  The use of pre-litigation mediation will no doubt become common place.

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