California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - APRIL 1999
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - April 1999
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News
Legal specialist exam set Aug. 19
Sullivan to take reins at Stanford Law School
Only two appointed members remaining on State Bar board
Legal services board has five vacancies
Davis taps Michael Kahn
State Bar honors Justice Mosk with Witkin Medal
Board tentatively approves budget based on dues of $384
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Opinion
If it distracts, so be it
Let's cut back on jury service
Limit bar to admissions and discipline
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From the President - Door to justice must be open
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Letters to the Editor
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Law Practice - Preparing for a successful mediation
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Appointments - Apply to serve on a bar committee
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Legal Tech - DSL speeds up Internet - at a reasonable price
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New Products & Services
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MCLE Self-Study
Taxes and long-term care
Self-Assessment Test
MCLE Calendar of Events
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Trials Digest
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Discipline
Ethics Byte - Fiduciary duties basis for all rules
Attorney nabbed at State Bar offices for soliciting murders
Attorney Discipline
Ethics for the 21st Century - A canon for the future
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Public Comment

LAW PRACTICE

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Preparing for a successful mediation
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By ELIZABETH L. ALLEN and DONALD D. MOHR
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As an attorney, you can do several things to prepare for a successful mediation. First, use this settlement intervention at the earliest opportunity. Resolving the dispute before it blows up into a full-fledged battle will result in less wear and tear on everyone, and should win you the lasting loyalty of your client. Second, take the mediation as seriously as you would a trial. Instead of viewing it as a waste of time or a dress rehearsal, focus all your energy and talent on using the process to achieve an acceptable resolution to the dispute.

Your preparation for a mediation should fall into two categories: work that you accomplish on your own and work that you do in conjunction with your client. One job that you can generally handle by yourself is the selection of the right mediator (or team of mediators). Look for creative thinkers. If all you needed was someone to suggest that you split the difference between a low offer and a high demand, you and opposing counsel could do that yourselves. Eliminate from consideration any who are known to take this easy way out, as well as those who exert heavy-handed pressure to settle.

See if you can locate a mediation team comprised of an attorney and a non-attorney; an interdisciplinary team can usually generate more creative solutions than a solo mediator. Once you have chosen your mediators, ask them to give you a list of the steps in the mediation process, so you and your client will know exactly what to expect.

Schedule the mediation for the earliest mutually convenient date. Make sure that everyone who was part of the problem, as well as everyone who might be able to participate in the solution, is firmly committed to the chosen date. In determining who should participate, consider the spouses. They often hold the key to reaching a settlement that will work in the long run.

Once the players are identified and the date is set, collect and organize all the documents that pertain to liability or damages. Make enough copies to hand out to each participant, including the mediator. Then make copies of the relevant statutes and cases. Providing hand-outs on the law will enable you to introduce your arguments regarding your client's legal rights more effectively than if you relied solely on a brief provided to the mediator or on your verbal recitation of the law.

Donald Mohr and Elizabeth L. AllenA week before the mediation, meet with your client for at least a couple of hours. Your agenda should include the following seven items: 1) rehearsing your client's story, 2) identifying questions to ask the other side, 3) prioritizing your client's goals regarding monetary and non-monetary compensation, 4) brainstorming for solutions designed to meet the needs of both sides, 5) determining the importance to your client of reaching a settlement, 6) helping your client articulate his or her best alternative to a negotiated agreement (B.A.T.N.A.), and 7) clarifying your respective roles in the mediation.

The story: Your client should be able to describe what happened, without interruption from you. Practice this phase of the mediation until he or she can recite all the important points, without leaving anything out or introducing new details.

Questions: The mediator should facilitate an exchange of questions and answers early in the process. With your client's help, make a list of questions that you want to ask the other side. Unless there is a compelling reason to do otherwise, these should be posed by your client, rather than you.

Goals: Ask your client to state his or her goals, then prioritize them from most important to least important. Does your client have a settlement figure in mind? Does he or she want something in addition to money, such as an assurance that a dangerous condition has been corrected? Now is the time to elicit as much information as possible regarding negotiating flexibility.

Solutions: Remind your client that a settlement is reached only if both sides can live with the proposed solution. Ask him or her to assist you in making a list of the components of a settlement package that might appeal to everyone involved. Work hard on coming up with some non-monetary components which could be easy for one side to give and valuable for the other to receive, such as an apology, an expression of appreciation, or a letter of recommendation.

Motivation: Determine the relative importance to your client of concluding the mediation with a settlement. Does your client need to settle at any cost? Is he or she determined to enjoy the vindication that accompanies a victory in court?

B.A.T.N.A.: Save plenty of time to discuss your client's best alternative to a negotiated agreement. Go over all the costs that you can foresee should the case proceed to arbitration and/or trial. Add up the cost of depositions, expert witness fees, jury fees, enforcement and appeal, as well as your best estimate of your own fees.

Make sure that your client understands all the figures you provide regarding the financial costs of litigation. Then ask him or her to describe the other costs that may be associated with a failure to reach a negotiated agreement. Will there be time missed from work? A postponed vacation? Will there be additional stress at home? Your client needs to be very clear about all the emotional, social and financial costs connected with declining an offer and choosing to continue the litigation instead.

Your roles: Conclude your meeting by discussing your respective roles in the mediation. Do you view yourself as the team leader or as a support person? Review the steps in the mediation process and the part that each of you will play. Familiarizing your client with the process will reduce his or her anxiety and result in a more confident, effective participant.

Once you have completed your own preparation, organized documents, and prepared your client, relax. The vast majority of disputes can, with appropriate assistance, be settled. The effort you have put into preparation should greatly enhance your chances of success and gain you a well-earned reputation as a problem solver, not only with your client, but also with your colleagues.

Lawyer Elizabeth L. Allen, co-owner of Coast To Coast Mediation Center in Encinas, and her husband, Donald D. Mohr, give workshops on divorce and civil mediation. They are the authors of "Affordable Justice" and can be reached at 1-800/748-6462 or at www.ctcmediation.com.