Mediation Consulting Services

Kathy can provide support for her clients or for counsel for a litigant wishing to explore mediation as an alternative to litigation. She can assist in each step of the process, from bringing the client to the mediation table, to engaging in pre-mediation activities, to maximizing and leveraging the actual mediation process so the client is prepared to have the difficult conversation about conflict resolution.

Getting the Client to the Mediation Table

One of the most challenging parts of the mediation process is getting the parties to sit down to talk together. Parties to disputes typically have similar concerns about mediation, most if not all of which can be eliminated or mitigated with some education about the process. The common concerns are about:

  • the ultimate outcome of mediation
  • a suspiciousness when mediation is suggested that the other side is trying to gain an advantage
  • tipping their hand in the event that the case doesn’t settle at mediation
  • the belief that a judge is more neutral than a mediator
  • the belief that a judge or a jury will prefer their side
  • the upfront costs of mediation

Notwithstanding these concerns, some litigants simply want their day in court, although they remain ignorant of the benefits of mediation as compared to the costs and risks of trial.

Kathy can provide a straightforward explanation of the pros and cons of mediation versus litigation. She can discuss with clients that fact that most cases settle before trial and that the client, and not a judge or jury, will decide whether to settle and on what terms. Kathy can also assist in educating the client on the comparison of the relatively minor costs of mediation as compared to the costs of discovery and trial can help put the issue into perspective.

The first step to a mediation is getting the parties to the table. Kathy’s familiarity with the mediation process and her extensive experience with both settlement and litigation can assist in educating the client about the benefits of mediation.

Pre-Mediation Planning

After the client is committed to trying mediation, successful negotiations will require upfront planning. Kathy can assist the client in the following crucial pre-mediation issues by:

  • Choosing the right mediator with the right qualifications for the case.
  • Participating in a pre-mediation conference with the mediator to prepare the mediator for any issues particular to the case that may be relevant to the process.
  • Discouraging hostile posturing by the client, which is unproductive both before and during mediation and which sends a message to the other side that is inconsistent with good faith negotiations.
  • Encouraging the client to refrain from revealing a bottom line position before the mediation begins.
  • Preparing the client by explaining the following:

     

    • The mediator is neutral and will not decide who is right and wrong
    • The client’s job is to make an impression on the other side, not the mediator
    • Respectful and courteous behavior is more likely to lead to resolution
    • There is no benefit to exaggerating or falsifying your position and it will only damage your credibility
    • Give the opponent something to agree with
    • Agree with the opponent when their position is right
    • Keep an open mind
    • Do not adopt a bottom line approach
    • Be patient and prepared to stay until the case is resolved.
    • Be prepared for the case to take more than one mediation session to resolve
  • Preparing the client so the client has a good command of both the facts and law so that the client’s position can be asserted from a position of strength.
  • Preparing the client for any statements that the client may make during joint sessions with the other side.

Mediation Brief

Kathy can assist with the preparation of the mediation brief which should be designed to explain the facts to the neutral mediator, not to persuade a judge.

The brief should:

  • be supported by relevant factual background
  • discuss the key legal issues
  • discuss the areas of agreement and disagreement
  • attach key documents and any controlling cases
  • include a statement demonstrating interest in settlement

The brief should not:

  • express outrage at the adversary
  • overstate the case
  • be written to achieve the result of prolonging the dispute rather than encouraging resolution.

During Mediation

During the mediation itself, the representations made during joint sessions and the dialogue with the mediator will dictate the manner in which the mediation unfolds. Kathy can assist the client in navigating the way through the mediation itself, providing insight into the process, the merits of the other side’s position, and a best and worst case analysis of the client’s case.  Among other things, Kathy can:

  • Make sure the client has full settlement authority present at the mediation.
  • Help set the tone with the opening statement, ensuring that the remarks are addressed to the other side rather than to the mediator.
  • Assist in evaluating the merits of the case during the mediation
  • Assist in identifying and maximizing strengths and identifying and minimizing weaknesses
  • Help get the client into the mindset of bargaining quickly
  • Help remove the emotions and focus on the issues
  • Slow the pace of negotiations to avoid bottom line approaches
  • Help to keep the parties talking because the longer they talk, the closer they will usually get to a solution
  • Keep it real by encouraging the client to get into the zone of bargaining with realistic expectations
  • Encourage client to keep an open mind and get educated on the other party’s case to assist in evaluation of the client’s position.
  • Assist in determining the value of the case based on best and worst cases scenarios

Mediations can involve long hours and a lot of follow up, so patience is required. Kathy can assist the client to stay focused on the objective and resist the temptation to rush the process.

Contact

Kathy Bazoian Phelps

1999 Ave. of the Stars, Ste. 1100, Los Angeles, CA 90067

kphelps@diamondmccarthy.com

+1 (424) 278-2330

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