August 2017

Pat was a presenter at the 2017 American Bar Association’s Forum on Construction Law held in New York City.  The Advocacy in Mediation program dealt with the significant benefits of mediating construction disputes before they go to trial.  Some of the issues that were discussed during the program included the selection of a mediator; tailoring the process to the specific client; and how to be an effective advocate for your client before, during, and after the mediation.  For your reading pleasure, Pat’s go-to “List of Tens” appears below.

TEN Things to do BEFORE any Mediation
(by Patrick C. Coughlan, Esq. – Conflict Solutions)

  1. Talk to the mediator prior to the mediation.
    • Give the mediator an overview of the case.
    • Tell the mediator about your client.
    • Discuss negotiations to date.
    • Lay out any impediments to settlement.
  2. Talk to opposing counsel prior to the mediation to be sure they have everything they need to make a decision at the mediation.
    • Ask how you can help achieve a settlement.
  3. Prepare your client for the mediation experience.
    • Explain the difference between litigation (adversarial) and mediation (Problem Solving).
  4. Discuss the role of the mediator with your client.
  5. Encourage your client to participate in the process. It may be the first opportunity the insurance representative has had to evaluate your client.
  6. Focus on the key issues of the case. Be concise!
  7. Prepare a “Best Case Brief” for the mediator to be SHARED with the other participants. It may be the first time the other client has seen an unfiltered summary of your position.
  8. Get any memo or exhibits to the mediator far enough in advance to give her or him a reasonable opportunity to review them.
  9. Offer to have experts for each party meet with the mediator without lawyers prior to the mediation.
  10. PREPARE, PREPARE, PREPARE. It is 95% likely that the case will settle through mediation or subsequent negotiations. You should put as much thought and preparation into preparing for mediation as you do for preparing for trial.

TEN Things to do DURING the Mediation
(by Patrick C. Coughlan, Esq. – Conflict Solutions)

  1. Be open, friendly, and forthright. No Put-downs.
  2. Be HONEST.
  3. Get to know other participants and build TRUST.
  4. TRUST the mediator. NO GAMES.
  5. Have a plan and follow it, yet prepare to be FLEXIBLE.
  6. Think 2-3 moves ahead once offers start being made.
  7. Have a JOINT opening session. It is an opportunity for your client to see you and opposing counsel in action.  It gives you a chance to meet other parties and their representatives.  It increases your knowledge of other participants.  It gives you a chance to talk directly to the decision makers.
  8. It is OK to be firm in discussing your position, but refrain from being adversarial.
  9. Work the process. Take advantage of the mediator’s skills.  Be Creative.
  10. Have Patience. NEVER, EVER GIVE UP!  Mediation is a process that takes time to work.  Don’t accept impasse as a result. Keep working.  Do everything you can to keep the other parties engaged.

TEN Things to do AFTER the Mediation
(by Patrick C. Coughlan, Esq. – Conflict Solutions)

  1. Sign a written term sheet AT the mediation that contains the “essential elements of the settlement.” Make sure you bring a draft settlement agreement to the mediation, and share it early in the process with the mediator and other parties.
  2. Provide in the Term Sheet that the mediator will ARBITRATE any dispute over the settlement or the final settlement documents.
  3. Be gracious toward opposing counsel and parties. Say “good-by” in person whether or not you settle.  Thank everyone for their efforts.
  4. If the settlement involves confidentiality, be sure your client understands what that means.
  5. Review with your team what went well and what went poorly in the process. Learn from every mediation.
  6. Share any thoughts or comments with the mediator.
  7. Most clients experience buyer’s remorse. Help your client realize that this is     to be expected, and it is best to look at the result of the mediation a couple of weeks after a settlement has been reached.
  8. Produce any “final” documents in a timely fashion. Nothing is more frustrating for a client than lawyers taking months to close out a case.
  9. In the event a case does not settle at a mediation, keep the mediator involved.
  10. Keep negotiating until the matter settles!

TEN Ways to Help your Client Achieve a Better Mediated Result
(by Patrick C. Coughlan, Esq. – Conflict Solutions)

  1. Remember it is NOT always about the money!
  2. It’s your client’s process–let him or her have a role.
  3. Listen to the other side well enough to summarize what was said.
  4. Be open to new approaches and ideas.
  5. Take advantage of the mediator’s experience to educate your client.
  6. Be friendly, respectful, and thoughtful of every participant.
  7. Mediation is NOT an adversarial event!
  8. Be a problem solver!
  9. Never, never give up on the process.
  10. Be creative in framing solutions.