Today, crowded civil dockets often require your clients to wait their turn, sometimes for years, while the financial and emotional costs of litigation spiral out of control. Mediation has become an essential alternative to a clogged judicial system, making effective mediation strategies an important skill set for every successful litigator.
I have represented hundreds of plaintiffs and defendants at mediation and served as a mediator for more than 10 years. I have found that, when direct negotiations fail, mediation gives the parties a way to restart negotiations through the buffer of an empathetic neutral who serves as the emissary to get the parties talking again. The skilled mediator can find just the right pace and cadence for the caucuses to build momentum toward closure by making sure both sides’ positions are positively impacting the negotiations.
It happens at mediations each day. After a long, contentious, and exhausting day, the parties finally find terms on which they agree to end their conflict and they want to go home. Quickly. The attorneys draft a one-page, bullet point list of the agreed terms that the parties sign. One of those terms provides that the attorneys will prepare and the parties will execute a “more formal settlement agreement” or other documents after the mediation.
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