Think of mediation as Switzerland. It involves bringing in a neutral third party to settle a dispute. Don’t confuse it with arbitration, where a judge listens to the evidence of each party and makes a judgment as to who is liable in the case. Mediation is an alternative dispute resolution, where both parties meet with a neutral third-party to help settle the case.

Mediation is used to resolve cases, whereas litigation is fighting out the merits of the case. It isn’t about convincing a judge. It’s about trying to leverage the best settlement you can. Remember, you are in control of your destiny.

Before going into mediation, start with a focus on two goals: resolving the case and obtaining the other side’s best offer.

How do you advocate differently in mediation vs. in litigation


Know your audience.
Understand your target audience is the other side, not a judge or a jury. Advocate accordingly.
Create a strategy.
Have a strategy for how you are going to negotiate going into the conference. Know beforehand what moves you are prepared to make. Be proactive, not reactive.
Prepare your client appropriately.
Make sure your client is prepared for the emotional ups and downs of the day. Tell your client to anticipate feeling frustrated, angry, and/or disappointed. Talk your client through how he/she should discuss and focus on how the matter affected him/her, while you make legal and factual arguments.
Use visuals during the mediation.
There’s a reason they say a picture speaks a thousand words. Use flip charts and video deposition testimony to help articulate your points.
Assertively advocate, but stay positive.
It’s important to advocate assertively for your client without antagonizing the other side. If they can provide what you are seeking, consider using the passive voice to be less adversarial. Prepare yourself mentally for a resolution of the case and remain positive. Remember, you can sympathize with the other side without agreeing with them.
Understand you are piloting the direction.
The judge or 3rd party can assist you in resolving the case, but you have to take control of your case and set your course.
Prepare and provide materials.
Provide the mediator with all of the ammunition you need to help your side. If you have good documents, bring them. Include comparative cases and verdicts that are similar to your case. Make sure to include any good deposition testimony that supports your side, as well as documents to other verdicts you can analyze for an appropriate resolution.

Prepare yourself and your client for questions the mediator will have for you. Make sure you include talking points for yourself and your client.
Bring a settlement agreement with you.
It’s a good idea to have an agreement with you before going into mediation. Think about the non-economic requests you want to include for your client. Make sure to discuss any confidentiality clauses.

In an ideal world, you have everyone sign a document at the mediation; otherwise there can be misunderstandings later on with individuals or companies backtracking about what was and wasn’t agreed upon. You don’t want any loose ends after you end your mediation.

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