ADVICE TO ATTORNEYS PREPARING FOR MEDIATION

You are reminded that the Preamble to the Minnesota Rules of Professional Conduct requires that lawyers have a responsibility for the quality of justice and that lawyers seek a result advantageous to their clients but consistent with requirements of honest dealings with others.

Plan a meeting with your client prior to the day of the mediation conference.  Tell your client that the pre-conference meeting is necessary for the two of you to analyze your case and that client input is essential.  At the meeting, inform your client that you and your client will be meeting with a mediator and the attorney or responsible party from the other side to discuss ways that settlement can be reached in a minimum amount of time and at a low cost to the parties.

Fully discuss your client's case as follows:

1.                  Identify the strengths of your client's position.

2.                  Identify the weaknesses of the case -- discuss what the other side will say in response to your projected strengths.

3.                  Discuss with your client the results of similar cases that have been tried in the jurisdiction where this case would be tried if it does not settle in mediation. Show your client the differences between her/his case and past cases; discuss the similarities as well.

4.                  Identify information over which you have control and which you can present at trial.

5.                  Identify information over which you do not have control and issues which you must seek through further discovery. Talk with you client about the cost of engaging in further discovery and balance that with the likelihood of success at trial.

6.                  Estimate with your client the range of probable outcomes in the event that the case goes to trial.

7.                  Estimate with your client any litigation costs (both time and money) in the event that you continue to litigate.

8.                  Talk with your client about your client’s interests underlying the claim:

a.       Does your client want to take these issues all the way to trial? If so, why?

b.      What interests have been expressed by your client (refer to your complaint, settlement demands, correspondence).

c.       Help your client to identify any hidden interests or behind-the-scenes motivations of the various parties.

9.                  Develop settlement options.

a.       Identify and list as many options as possible (other than money) that are available, projecting what the other party could do to satisfy your client's needs, wants and interests.

b.      Identify and list as many options (other than money) as possible, theorizing what your client could do to satisfy the interests of the opposing party.

c.       Prioritize the options, allowing room for flexibility. Allow your client to tell you what s/he would like to see in terms of results; then, ask your client what s/he will take as her/his bottom line.

10.              Consider a negotiation strategy. Be prepared to "test the waters" with the mediator during the mediated negotiation session. Inform your client that the other party will be attempting to do the same thing.

a.       Identify with your client any offers that are "on the table." Identify the current settlement positions of your client and each party. At each step in the process identify under what terms, if any, each party has expressed a willingness to settle.

b.      Do you have any feel for what the other side is willing to do at this time?

c.       Speculate with your client about terms under which your client would be willing to settle the case.

d.      What is your client willing to do if the other side adjusts its offer upward

e.       Speculate about terms under which your client would be willing to settle if there is reciprocal movement by others.

f.        Repeat this analysis until you and your client have looked at all possible options for settlement.

11.              Inform your client that this is an informal proceeding.

12.              Prepare your client to make a statement regarding the incidents that led to the suit.

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