2. 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
3. THE MEDIATION
TOOL BOX
1
3
Why Mediate?
5
TACTICS TO USE
Strategic
Timing
DURING
MEDIATION
2
4
Cases Ripe for
Selecting a
Mediation
Mediator
4. BENEFITS 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!!!!
5. SELECTING 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
6. 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.
8. KNOW YOUR OPPONENT
Research Verdict History
Texas Trial Reporter
The Blue Sheet
Research Trial Tendencies
Jury Selection
Opening Statements
Witness Examination
Closing Arguments
9. Mediation Presentation
(A mini-trial)
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
10. CO-PLAINTIFFS/CODEFENDANTS
• 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
11. Case Specific Negotiation
• Appropriate use of Mediator
• Business solutions
• Playing portions of Jury
Focus groups in mediation
• Contingent settlements
• High low agreements
12. Closing 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
13. 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