After more than 300 mediations in the last twenty years, I have found that a successful mediation of a complex matter requires thoughtful preparation and collaboration by counsel, parties and the mediator. In contrast, the hallmarks of a failed mediation often include: an inadequate objective evaluation of one’s own case, a failure to fully support or vet the damages claimed, failure to make a cogent and competent case presentation in the joint session, or a failure to accurately estimate the transaction cost of proceeding to judgment (attorneys’ fees, expert fees, discounted risk of adverse judgment etc.). What follows are some practical observations and suggestions on how to be effective as an advocate in mediation. This is not meant to be exhaustive; it is meant to orient (or re-orient) counsel’s thinking as a mediation approaches.
Choose the Right Mediator
There are many schools of thought on how to pick the right mediator. Some argue that picking a mediator with deep substantive knowledge in the subject