Tuesday, May 5, 2015

Some Mediation Tips

In the State of Texas, most judges require mediation before proceeding to trial.

A well known secret in the legal community is that (1) most cases settle at or before mediation and (2) less than 5% of all lawsuits actually go to trial.

Mediation can and should be highly effective if the leg work is done. 

Here are a few pointers to keep in mind:
  • Choose your mediator carefully: it appears that almost every attorney or paralegal nowadays can take a class or a seminar and become a "certified" mediator.  Being "certified" means that you have taken the basic 40 hour class.  Mediation is a skill and the seasoned mediator understands the case, knows the jurisdiction and the law, and more importantly knows how the judge thinks.  This person is usually a practicing attorney or former judge who will exhibit a solid grasp of all issues and guide you toward a successful resolution of your case. 
  • Cost is an important factor -- but should not be the driving force behind your choice.
  • Be fully prepared as if you were going to trial. This is important because it gives the opposing side an opportunity to see the type of attorney you are and may facilitate a resolution. This is also important because it makes the mediator's job a lot easier since all documents needed for court are available for review and evaluation.
  • Come with an open mind: mediation is a give and take process. In fact, there is a saying that "if both parties are unhappy at the end of a mediation, that's a sign that the mediation was a success."
  • Focus on what's important: although the goal at trial is to win, mediation's goal is resolution. Use the mediator's skills to think outside the box and find unique solutions to complex problems.
  • Be patient: mediation takes time and you may be sitting in a room for extended periods of time while the mediator works with the other side. Most mediations last from 4 hours to 10 hours. Mediation is a magical process but it often takes some time for the "magic" to occur. Be patient.
  • Respect: show respect to all parties including the mediator, your opponent and the attorneys working the case. Any party that feels disrespected is less inclined to consent and work on a mutually agreeable solution.
  • Lastly, unlike in court, you are in control at mediation to craft a unique solution to your legal issues. Take full advantage of it .

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