Mediation Advocacy
When mediation began to be more commonly used in the late 1980s and early 1990s, it was not unusual for counsel to come into the mediation and make the type of adversarial presentation that would be made at trial. Rather than contributing to reaching a mutually beneficial settlement, however, such approach would often result in a hardening of positions making such a settlement more difficult.
In mediation a “make peace not war” mindset will more often lead to a mutually beneficial result. This does not mean you should not be a strong and firm advocate for your client. You should be. Drive a hard bargain but remember that the goal is to resolve the case in a way that is in the best interests of your client. A “slash and burn” approach makes this more difficult. It is more productive to present your client’s case in a calm, reasoned way and avoid argument and manner of presentation more suitable for a jury trial where victory, not compromise, is the goal.
Explain the facts and law that supports your client’s case and why you believe a jury will reach a verdict in your client’s favor. Use deposition excerpts, documents, photographs, video, Power Point or anything else that will demonstrate that you are well prepared for mediation, as well as, ready to go to trial if necessary.