There’s Nothing Like Being Prepared

By Leigh Wilco


How do you prepare for mediation? As a mediator of commercial and real estate disputes, I’ve found that some lawyers view mediation preparation as unnecessary and not the best use of their time. But failing to prepare almost always assures a failed mediation.


Read the following exchange, between senior partner, Sue, and junior partner, Bob, in the hall of their office one Friday afternoon. Who do you think is doing the better job for their client?


Sue: Hey, Bob, I see on the calendar that you have the Medium Client (“MC”) versus Goliath mediation next week. How do you feel about it?


Bob: Oh, yeah. It’ll be fine. I doubt we’ll settle. No biggie.


Sue: But this is a pretty big risk for MC, isn’t it? How do they feel about the mediation?


Bob: Well, they’d really like to get this behind them, but I’m not sure Goliath is too worried about the case. I don’t think that they have a realistic view of their risk.


Sue: That’s too bad. I assume that you will help them understand the true picture at the mediation.


Bob: I don’t know. I doubt that their lawyer is really telling them all the risks.


Sue: Sounds like a great opportunity for you to get that message across through the mediator and in the joint session opening.


Bob: Uh, I’m not sure we are doing a joint session. The other side doesn’t want one.


Sue: But the joint session will give you the opportunity to speak directly to Goliath’s corporate counsel and educate her about the case even if her attorney is keeping her in the dark.


Bob: Hmm. I hadn’t thought about that. I can give her a big fire-and-brimstone closing-type argument and scare her.


Sue: True, but that might just make her mad and she could stop listening to you. How about if you hit her with the facts and show her the evidence that will really hurt her case?


Bob: I was planning on saving that for trial. I don’t want her to know what is coming.


Sue: Wasn’t the evidence produced in discovery? Doesn’t our client want to settle the case without spending the time and money on a trial?


Bob: Well, yes. I guess I could try to summarize the pertinent documents in my opening.


Sue: You could, but she might not believe you. It would be more effective if you showed her the actual documents so that she could see that you are not exaggerating.


Bob: It’s true that several of the documents are really damning to their case.


Sue: And how about some quotes from the admissions that you got in the depositions?


Bob: Yeah, some of those are killers. I could highlight the sections so she could see them in black and white and see what the jury would see if we didn’t settle.


Sue: Great. And how about your damages calculations to show her how much she stands to lose at trial?


Bob: Oh, I have some rough numbers, but we really haven’t nailed it all down exactly.


Sue: Is there any reason not to do that?


Bob: Well, like I said, I didn’t think that Goliath really wants to settle, so I didn’t want to waste the time on finalizing our damages claim.


Sue: But if you do not know what your damages claim will be, how can you and the client evaluate the case for settlement?


Bob: Our client is pretty mad at Goliath, and he thinks they should pay for what they did. But I guess that is not really the issue, I guess we need to know how much we will be asking the jury to award us and what our chances of winning are.


Sue: Exactly. And what are the costs of the trial, how long will it take, and what impact will it have on MC’s business? Those are all the things that our client needs to know so that we can manage his expectations going into the mediation and help him make a realistic evaluation of a reasonable settlement amount.


Bob: I can get our associate to put a spreadsheet together. We can spring that on the other side at the mediation and knock their socks off.


Sue: Sure, but if they see the numbers for the first time at the mediation, they may not be able to evaluate them and they may not be able to get the appropriate authority to settle. It would be more effective to give it to them in advance so that they will know what their exposure is before they start discussing settlement numbers.


Bob: But if I give it to them too soon, they might be able to find flaws in our calculations.


Sue: And if they do?


Bob: I guess that is good for us to know and reevaluate our position. Better now than at trial.


Sue: I couldn’t have said that better myself. When is MC coming in so you can prepare him for the mediation?


Bob: Oh, I thought that I’d just do that at the mediation while we are waiting … I mean, I was just about to call him and set up a meeting for Monday.


Sue: That sounds like a plan.


Bob: Sounds like I will be working this weekend.


I hope that this exchange has convinced you of the value of preparing for mediation. Taking the time to prep your client, provide a demand with support (if you represent the plaintiff) or evidence to question the other side’s claims (if you represent the defendant) before the mediation, and determine how you’ll present your case, are all part of “zealously representing” your client. It also sets the stage for a more successful result the day of mediation.



About Leigh Wilco

Leigh Wilco

Leigh Wilco has been mediating cases for more than 10 years, settling more than 80 percent of them. He also arbitrates real estate and commercial disputes and has been appointed by the courts as a special master and as a receiver. Leigh has been practicing law in Atlanta for over 40 years, representing plaintiffs and defendants in a variety of matters.