Just as you can hone your trial advocacy skills, you can hone your mediation advocacy skills. I have the pleasure of presenting three continuing legal education (CLE) webinars with my mentor and colleague Mike Geigerman on mediation advocacy. We will be sharing many tips on how to be the best advocate you can be, but I’d like to share three tips that you can incorporate into your practice now.
The Missouri Bar Association is offering mediation advocacy 101 on January 4, 2022 at 2:00 PM. https://mobarcle.mobar.org/item/2022-mediation-advocacy-101-437687?eventTimeId=3487904. 101 is geared for young lawyers or others who have never attended a mediation or observed only. It is basic but thorough. Mediation Advocacy 201 is set for January 12 and it is geared for practicing attorneys who are familiar with mediation but want to improve their skills. On January 20, Mediation Advocacy 301 will take a deep dive into specific topics like multiple party mediations, the psychology behind decision making, opaque mediations and a discussion about becoming a mediator. The three programs are stand-alone so you do not need to attend all three.
The first mediation advocacy tip is knowing the economics of your case before the mediation: what are the legal costs to date; expected costs through the end of trial; expected attorney’s fees to date, and through the end of trial; costs of experts; deposition costs including videotaping; medical expenses both billed and paid; future medical; medical liens; other attorney liens and lost wages, past and future. If you cannot nail down one of these before the mediation, figure out a ballpark number. Ask a colleague. Ask your mediator. Plaintiffs, I recommend sharing the medical costs and liens with the defendant in advance. Work as a partner with your client and minimize surprises (clients hate surprises at mediation) and give your client the actual take-away numbers at the mediation. Missouri Lawyers Media has a sweet verdict/settlement finder that I like to use. https://molawyersmedia.com/
Second, lose the anger. Mediation is finalizing a business deal and emotions like anger stand in the way of completion. Don’t ignore the anger, but phrase it like this: when the jury hears this (deposition line or statement to police …) they will be angry with your client. To do this you have to know where the heat lies in your case and be ready to refer to it by line # or Bates number at the mediation. Anger at the other side or the mediator just delays the process.
Third, test your technology. Regardless if anyone is participating by ZOOM, chances are you will be searching for a document, court decision or email during the mediation. Be sure to have your software up to date and lap-top fully charged. If you are remote, charge up your mouse and keyboard. Schedule a dry run with you your client and, if you like, with your mediator. Remember you can have ex parte conversations with your mediator before, during and after the mediation. This may seem basic but it can throw you off your game if your technology fails during the mediation.