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ALTERNATE DISPUTE
RESOLUTION

TACTICS AND STRATEGY
IN MEDIATION
Robert A. Allen
ALLEN, STEIN & DURBIN, P.C.
William J. Maiberger, Jr.
WATTS LAW FIRM, L.L.P.
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
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
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!!!!
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
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.
GAME TIME
(Mediation Tactics)
Opening Statement

Tactics During
Mediation

Closing the
Mediation
KNOW YOUR OPPONENT
Research Verdict History
Texas Trial Reporter
The Blue Sheet
Research Trial Tendencies
Jury Selection
Opening Statements
Witness Examination
Closing Arguments
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
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
Case Specific Negotiation
• Appropriate use of Mediator
• Business solutions
• Playing portions of Jury
Focus groups in mediation
• Contingent settlements
• High low agreements
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
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

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T

  • 1. ALTERNATE DISPUTE RESOLUTION TACTICS AND STRATEGY IN MEDIATION Robert A. Allen ALLEN, STEIN & DURBIN, P.C. William J. Maiberger, Jr. WATTS LAW FIRM, L.L.P.
  • 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.
  • 7. GAME TIME (Mediation Tactics) Opening Statement Tactics During Mediation Closing the Mediation
  • 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
  • 14. END

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