EFFECTIVE ADVOCACY IN PROBATE (AND OTHER) MEDIATIONS

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1 EFFECTIVE ADVOCACY IN PROBATE (AND OTHER) MEDIATIONS ROSS W. STODDARD, III Attorney-Mediator Williams Square in Las Colinas 5215 N. O Connor Blvd., Suite 1795 Irving, Texas Phone: (972) Fax: (972) State Bar of Texas 28TH ANNUAL ADVANCED ESTATE PLANNING AND PROBATE COURSE June 9-11, 2004 San Antonio CHAPTER 13

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3 ROSS W. STODDARD, III ATTORNEY - MEDIATOR Summary Biography Ross W. Stoddard, III is an attorney-mediator who was born in 1950 and raised in Denison, Texas. His father is an investor and horseman, whose father was a lawyer who practiced law in Denison, Texas for 55 years. Ross' mother and grandmothers managed their respective households and child-rearing duties. Ross and his wife, June, who is an interior decorator, live in Coppell, Texas, and are awaiting adoption of their next Golden Retriever(s). His two step-sons, Brett & Ryan, have left the nest. Education. In 1972, Ross received his Bachelor of Business Administration, with honors, from Southern Methodist University ("SMU") in Dallas, Texas. In 1975, he received his Doctor of Jurisprudence from the University of Texas School of Law. In 1989, Ross began his formal training as a professional mediator through the initial mediation training program of the Dallas Bar Association ("DBA"). Government Service. Ross served for four years ( ) in the United States Air Force, as law clerk to the federal Administrative Judges of the Armed Services Board of Contract Appeals in Washington, D.C., and as staff attorney to the U.S. Contracting Center in San Antonio, Texas. Private Law Practice. Since becoming licensed in 1975, Ross has practiced law in the Dallas, Texas area as a sole practitioner and with associate lawyers in his firm. His experience as a lawyer is in both litigation and transactions, in a broad range of areas of civil law, including business, contracts, partnerships, corporations, joint ventures, investments, commercial, real estate, personal injury and consumer protection. He also participated in several mediation sessions as an advocate on behalf of his clients. He has an A-V rating from Martindale-Hubbell. Financial & Investment Advisor Practice. In the mid-1980's, in addition to his law practice, Ross served as chairman of Focus Financial Consultants, Inc., which provided financial and investment advice primarily to professionals and small businesses. During that time, he was a member of the International Association for Financial Planning. Mediation Practice and Faculty Service. Since 1989, Ross has developed a full-time mediation practice, having conducted in excess of 3,000 mediations involving over $15 billion in aggregate claims in a wide variety of matters. His practice primarily involves serving as mediator of cases in civil litigation, both at the request of various state and federal courts, as well as at the request of parties and counsel. He also serves as mediator in pre-litigation disputes and business negotiations. Ross conducts 200 to 250 mediations per year. He has served on the faculty of the Basic and Advanced Mediation Training Programs sponsored by the American Bar Association ("ABA"), American Academy of Attorney-Mediators, Inc. ( THE ACADEMY ), Association of Attorney-Mediators ( AAM ), Indiana & Arkansas Bar Associations, DBA, and Attorney-Mediator Institute ("AMI"). He is a co-founder, director and faculty member of THE ACADEMY. Ross has participated in the training of over 1,000 attorney-mediators and judges throughout the U.S. and Canada, and over 500 hours of courses in mediation and negotiation. He authored the chapter on the use of ADR in tort disputes in The Litigator s Handbook, published by the ABA Section of Litigation. Ross also teaches The Art of Effective Negotiation - Strategies, Tactics and Ethics course in the SMU Executive MBA Program. Court Admissions. Ross is licensed to practice law before the U.S. Supreme Court, U.S. Court of Federal Claims, U.S. Court of Customs and Patent Appeals (formerly), U.S. Court of International Trade, U.S. Tax Court, U.S. Courts of Appeal of the 5 th, 11 th, Federal and District of Columbia Circuits, U.S. Court of Appeals for the Armed Forces, U.S. District Courts of the Northern, Southern, and Western Districts of Texas, Texas Supreme Court and all state courts of Texas. Professional Associations & Activities. Ross was a charter director and officer of AAM and has served on the ADR Section Council of the State Bar of Texas ("SBOT"). He is or has been a member of the Texas Association of Mediators ("TAM"), the Society of Professionals for Dispute Resolution ( SPIDR )/Association for Conflict Resolution and the ADR Sections of the ABA, SBOT, DBA and Tarrant County Bar Association. Ross previously served as Chair of the ADR Committee of the ABA Torts & Insurance Practice Section s Commercial Torts Committee. Ross has spoken on mediation practices at numerous bar association continuing legal education seminars, at annual and regional meetings of the ABA, AAM, DBA, SPIDR, TAM, Texas Association for Court Administration and Texas Judicial College, as well as at various law firms and law schools. He is a Fellow of the Texas Bar Foundation and the College of the State Bar of Texas, a Life Patron Fellow of the Dallas Bar Foundation and a Charter Fellow of the Tarrant County Bar Foundation. Ross has served on the Executive Committee of the Board of Directors of the SMU Alumni Association and is a member and trustee of the Texas Center for Legal Ethics and Professionalism. Contact Information: ROSS W. STODDARD, III Phone: (972) ATTORNEY-MEDIATOR Fax: (972) WILLIAMS SQUARE IN LAS COLINAS N. O'CONNOR BLVD., SUITE 1795 IRVING, TEXAS 75039

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5 EFFECTIVE ADVOCACY IN PROBATE (AND OTHER) MEDIATIONS I. HOW TO USE MEDIATION EFFECTIVELY TO ACHIEVE OPTIMAL SETTLEMENT FOR YOUR CLIENTS. A. Learn all you can about the mediation process, the dynamics of mediation, negotiation techniques and strategies, the psychology involved in negotiations, human dynamics. Attend seminars. Read books. Listen to tapes. For example: 1. The Court's Order of Referral for Mediation. 2. Rules for Mediation. 3. Mediation: A Texas Practice Guide, by Eric Galton, Texas Lawyer Press (Dallas 1993) 4. Getting to Yes: Negotiating Agreement Without Giving In, by Roger Fisher & William Ury, Penguin Books (New York 1981). 5. Before You Sue, by Kneble and Clay, William Morrow Publisher (New York 1987). 6. Mediate Don't Litigate, by Peter Lovenheim, McGraw Hill Publisher (New York 1989) 7. See Bibliography (Appendix A) for more references to books on negotiation. B. You tell your client about the availability of mediation, preferably in the initial client visit -- do not wait until the client tells you about it! C. Use mediation. Suggest it. Ask for it. Insist on it. Argue for it. Do so with your client, the other parties' counsel, as well as the judge. 1. Become an advocate for prompt resolution of the matter. Let your client, the other party's lawyer, and the judge know that you and your client are ready, willing and able to resolve the matter at the earliest feasible moment, and that mediation is a viable means to that end. 2. Refuse to accept the belief that it necessarily will take a lot of time and money to resolve every dispute. 3. Except in rare instances, do not object to a case being referred to mediation -- instead, after discussing the case with the court-appointed mediator and opposing counsel, seek agreement of the other parties counsel to schedule mediation at an optimal point in the proceedings, which often is sooner rather than later. 4. Develop a short list of mediators who you believe will work hard to help the parties achieve a resolution; but be open to suggestions by opposing counsel to use other mediators. Most metropolitan communities have a number of qualified, well-trained, competent mediators, with various levels of experience and fees, from whom to choose. 5. Even though the Court may have appointed a mediator, never hesitate to request a substitute mediator if you believe another mediator would be more appropriate for the case. Jointly request a substitution, if all counsel agree. As court-appointed mediators, we may be disappointed that we had, then lost, the opportunity to mediate that case. Still, we are pleased for the parties that they reached their first agreement -- the selection of a mediator. 6. If you do not trust the mediator to maintain confidences, to remain neutral, to be committed to helping the parties reach resolution while maintaining the integrity of the mediation process, to draw on his/her instincts/intuition/gut feel/ higher power -- THEN GET ANOTHER MEDIATOR. 7. In court-annexed mediation, we likely will discover that it is most advantageous to appoint a mediator immediately after a case is filed although not necessarily to conduct a mediation at that point in time; rather, to assist the lawyers in distinguishing between the discovery which is necessary in order for all parties to evaluate the merits of the case, and the additional discovery necessary to completely prepare the case for trial. The mediation most likely should occur between the two stages of discovery, prior to the parties incurring the frequently substantial additional cost of the final phase of discovery and trial preparation. D. Prepare for mediation. 1. Prepare yourself first. a. Know your case: (1) Facts, undisputed and disputed. (2) Liability issues, undisputed and disputed. (3) Elements of your causes of action. (4) Amount of damages (The elements of damages should be written down, to be delivered to the other parties before, or at least at the commencement of, the mediation). (5) Counterclaims. 1

6 (6) Extent and values of assets and liabilities of the Estate. b. Think about your case: (1) Strengths. (2) Weaknesses. (3) Probable and possible jury verdicts. (4) Likelihood of appeal; possible appellate results (5) Evaluation of the case by the other parties' counsel. (6) What the other party likely will do, in terms of settling the case. (7) What the other party thinks your client is likely to do, in terms of settling the case. c. Research your case: (1) Read the applicable case law and statutes. (2) Read the Trial Report Service for similar cases. (3) Access statewide/national databases for similar cases (e.g.; ATLA/TTLA). (4) Talk to other lawyers about the settlement value of the case - after having disclosed to them the weaknesses and problems in your case -- to get a more unbiased response. (5) Read and understand the correspondence that you receive from the mediator. 2. Next, prepare your client: a. Provide your client with information about the mediation process and the role of the mediator. (1) Court's Order of Referral for Mediation. (2) Rules of Mediation (Appendix B). (3) Copy of mediator's correspondence to you. (4) Copy of completed Attorney Information Form (Appendix C) and/or Position Paper provided by you to the mediator. (5) Articles on mediation. (6) The proceedings are privileged and confidential, pursuant to Section 154 of the Texas Civil Practices and Remedies Code, the Court's Order of Referral for Mediation, and the Rules of Mediation. (7) There will be no recordings of the proceedings. (8) The proceedings are informal; that is, witnesses will not be called to testify, and evidence will not be presented. (9) The mediator's role is to be an advocate of settlement; a neutral, objective facilitator of the negotiations, there to assist with the communications and evaluation of the case. (10) The mediator is in control of the proceedings, but the parties are in control of the results of the mediation. The mediator will not be issuing any rulings or decisions on the merits of the case. (11) The objective of the mediation is not necessarily to settle the dispute. Rather, the objective of the mediation is to determine if the parties can reach a compromise settlement of their dispute (and to settle it if they can). The definition of a failed mediation is not one in which the parties failed to reach a settlement; rather, it is one in which the parties, with the assistance of counsel and the mediator, failed to do everything reasonably possible to determine if a settlement could be reached prior to concluding that a settlement was not possible. b. Visit with your client about the mechanics of the mediation session: (1) Initially, you will be in Joint Session with all of the parties and their counsel, where each lawyer will be presenting a short statement of the case from the lawyer's client's perspective, including: (a) (b) (c) (d) (e) (f) (g) Facts; Liability; Damages; Status of discovery; Status of previous settlement negotiations. You and your client will decide whether or not to have your client make any comments at the Joint Session. Remember, the purpose of the mediation session is to find a resolution to the dispute, so all communications should be focused on accomplishing that objective. (2) Then, the parties will be divided into Private Confidential Caucuses, where the mediator will be meeting privately with each party and their counsel, to openly discuss the merits of the case -- including the strengths and weaknesses -- 2

7 (a) and their respective evaluations of the case. Here, it is critical that your client vocalize what is on the client's mind, vent whatever emotions need to be vented, and actively participate in the discussions and evaluations, so that the client is actively involved in making the final decision on whether, and how, to resolve the dispute. (3) The mediator then likely will shuttle back and forth between the separate parties, conveying information and settlement proposals, until an agreement between the parties is reached. (4) Finally, a Mediation Settlement Agreement ( MSA ) will be drafted and signed at the conclusion of negotiations, during the mediation session. c. Most importantly, prepare your client's attitude for mediation: (1) The day of the mediation is the day set aside to explore all alternatives for resolution of the dispute. The objective of the mediation is to find a final, binding mutually agreeable solution to the dispute that day. (2) Define your client's objective during the mediation. However, do not let your client lock into a bottom line resolution prior to the mediation. (a) Certainly, come to the mediation session with some parameters for settlement in mind. (b) But remember, the purpose of the mediation is to utilize the services of the mediator to develop new information and insight into the case, which will permit all participants to re-evaluate the settlement (c) value of the case. It is very likely that the ultimate agreement reached during mediation will be beyond that which any of the parties, prior to the mediation session, thought that they would be willing to do to resolve the case. (d) Mediation permits the parties in a business case to find a business solution to the dispute -- something that a jury verdict probably would not provide. (e) Mediation permits the parties in a substantial personal injury case to utilize a structured settlement -- something that a jury verdict would not provide. (3) Develop your client's trust in the mediator and the mediation process -- both are neutral and objective. (4) Be sure that your client understands that when the mediator is in caucus with the other party, the mediator is working hard for your client's position, too. (5) If the case is not resolved during mediation, there are ramifications -- be sure your client understands them: (a) (b) (c) (d) (e) (f) (g) (h) Additional legal fees. Additional court costs. Additional out-of-pocket expenses. Time to trial. Emotional impact of further depositions and trial. Appeal -- likelihood, time, cost. Retrial, if remanded. Collectibility of judgment, if your client is a plaintiff. (i) Post-judgment actions (abstraction of judgment, execution, depositions, attachment, garnishment, receivership), if your client is a defendant. 3. Then prepare the other parties counsel: a. Without revealing any confidences, apprise them of any particular challenges to settlement, or sensitivities of your client to particular issues involved in a potential settlement. b. Alert them to any particular property that you perceive may be problematic in determining the split of the estate. c. Apprise them of the attendance/lack of attendance of any persons who may be perceived as being important to have in attendance, or not in attendance. d. Provide them with information necessary for them to be adequately informed well in advance of the mediation (in time to analyze the information prior to the mediation session). (1) Discovery responses. (2) Motions for summary judgment. (3) Financial statements. (4) Inventory and Appraisement and List of Claims of the Estate. 3

8 (5) Legal positions. 4. Lastly, prepare your mediator. a. Timely respond to the mediator's request for information: (1) Attorney Information Form (Appendix C). (2) Pleadings (last Amended Petition and Answer, Motion for Summary Judgment and Response). (3) Position Paper (confidential vs. distributed to other counsel). (4) Calendar of available dates for the mediation session. b. Let the mediator know if you believe that there are any particular problems or special considerations to be anticipated in dealing with any of the participants. (1) Your client is "uncontrollable". (2) Opposing counsel's client is "uncontrollable" by opposing counsel. (3) There is a long-term relationship between a counsel and client -- which may be more important to protect than to reach an appropriate settlement in this one case. (4) Public policy/corporate policy will be a determinative factor in the resolution of the dispute. (5) Counsels' working relationship has been somewhat acrimonious or, hopefully, the antithesis, during the litigation. (6) One or more participants will have special medicinal or food intake requirements, or physical disabilities, which will need special accommodation. (7) One of the parties has "definitively" stated what he/she will not ever do to resolve the dispute. (8) Additional discovery will be necessary to fully evaluate the case for settlement. (9) Defendants have not ever received a demand from Plaintiff's counsel. (10) You are concerned that the other party will not come to the mediation session "in good faith," or with adequate authority. (11) Persons other than the participants at the mediation session may play an important role in the decision-making process: (a) (b) Spouse, or other family member. Supervisor. (c) Board of Directors, or other committee. (d) FDIC/creditor (e) Governmental entities. (12) Your prior experiences in mediation, which likely will affect your beliefs about the chances of success in this one. E. Attend the mediation session, appearing with a positive attitude and bringing with you the most optimal participants representing your client. Essential elements are: 1. Persons Involved. Bring the person(s) necessary for full resolution of the dispute. a. YOU! You need to attend the mediation session. Do not send another attorney from your firm who either does not know the case as well as you do, or who does not have an equally strong relationship with your client. b. Individual party. c. Individual party's spouse. (1) Named as party. (2) Community interest in results. d. Corporate officer. e. Insurance company claim's representative. f. Guardian ad litem. g. Attorney ad litem. h. Executor i. Trustee. j. Guardian of the Person. k. Guardian of the Estate. 2. Authority. Person attending must have authority to settle the case. This is best defined as a person who not only has the authority to fully settle the dispute, but also the discretion to decide the resolution which is acceptable to such party. a. Disclose to the mediator any limits on authority [NOT necessarily the limit on the amount of authority; rather the requirement/ necessity of final approval of the settlement by the Court (Probate, Bankruptcy, District/ County), City Council, Board of Directors, etc.]. b. "Discretion to decide the resolution which is acceptable" is best defined as meaning that the person in attendance has the authority to resolve the case for the amount of the last settlement figure proposed by the other party 4

9 (although such proposal likely will never be accepted by such person). c. If a party in attendance has limited authority, you should have the person(s) with the requisite additional authority (and discretion) standing by their telephone, and you should have available such person(s) cell and home telephone numbers. Be sure to have access to such person after regular business hours. d. If all of your clients can not attend in person, if possible, bring a written, executed Power of Attorney empowering an attending client to act with full authority on their behalf. 3. Time. All participants must commit to being available for the full amount of time necessary to allow the mediation process to have the optimal chance to result in full settlement, as determined by mediator. a. Participants should clear their calendars to be available from commencement of the mediation through the balance of the day and into the evening, if necessary. b. Do not let your out-of-town client, or other participant representing your client, schedule a return flight in the afternoon; rather, make the flight as late as possible on the day of the mediation, or better yet, the following day. 4. Good Faith. Client and lawyer should come with the good faith intention to find a reasonable resolution of the dispute, if it can be found. A good definition of good faith is attending the mediation with an open mind to exploring the possibilities of settlement during the mediation process. 5. Be sure to advise the mediator ASAP, preferably before commencement of the mediation, if a conflict arises as to any participant's ability to attend with all of the above essential elements. II. CHECKLIST OF WHAT WORKS, AND DOESN'T WORK, DURING MEDIATION. A. Joint Session. 1. HAVE ONE!!! a. Too often, counsel tells the mediator that a joint session would do more harm than good and would only further polarize the parties, if they got in the same room with each other. b. It is extremely rare for the joint session actually to hinder an ultimate settlement. Rather, it often takes a joint session to bring the parties to the reality of the situation: who is in attendance; what it might feel like to be sitting in the same room for numerous trial days; to start the internal steps necessary to vent emotions in order to think more rationally about a compromise settlement. c. Remember: Cases will not settle upon unexpressed emotions. d. It is hard to believe that highly trained and experienced experts in advocacy communications (i.e.; the lawyers) would be unable to select and communicate the right words to promote a settlement which would benefit their respective clients. 2. You and your client should arrive on time. Be sure both of you know where to go and how to get there. Provide a map/directions to your client. 3. You and your client preferably should have fully reviewed the case and your negotiation plan shortly before the day of the mediation session. 4. Be courteous and professional with all participants. 5. Introduce yourself and your clients to all other participants, and identify their respective positions so that everyone knows who is playing which role during the mediation. Counsel should always offer to shake hands with the other folks when you greet them (certainly with opposing counsel; nearly always with the other parties). Encourage your client to do the same. The exception would be if there is a particular risk that the offer alone would be seen as offensive, based on the past experiences of the parties with each other. 6. Be cognizant of where the other participants are sitting and decide whether it is better for you/your clients to sit directly across from the other party or counsel. 7. Be attentive during the mediator's opening remarks. 8. Be especially attentive -- and actively listen -- during opposing counsels' opening remarks. You will have an opportunity to clarify any incomplete/erroneous information conveyed by opposing counsel -- but will not know to do so unless you actually, actively listened. a. While the other counsel/parties are speaking you and your client should not: snicker, smirk, laugh, shake your head in disagreement, roll your eyes, talk among yourselves, ignore the speaker, leave the room, take cellphone calls, read a magazine/newspaper, study your own files/notes, fiddle with noisy objects, click your pen, tap the table, turn your back to the speaker, interrupt, etc. (all of which have 5

10 occurred in my mediations!). You cannot imagine the ultimate settlement value cost paid by a party/counsel by engaging in such behavior. People do not quickly forget how they were treated during the opening session. The Golden Rule, once again, is the guide. 9. Be prepared to make your opening remarks. During the mediator's and opposing counsel's opening remarks, do not be reviewing your file documents (for the first time in months) to learn about your case or shuffling through your boxes/briefcase on the floor. 10. NEVER FAIL TO MAKE OPENING REMARKS! NEVER FAIL TO MAKE OPENING REMARKS! NEVER FAIL TO MAKE OPENING REMARKS! a. You likely will never have another opportunity to talk directly to the other party. b. How many times have you chosen to make no opening remarks to a jury (the ultimate decision-maker) in a trial. Almost never happens. Should almost never happen in mediation, too. c. Why pass on the one opportunity you will have to talk openly with the other decision- makers? If you fear antagonizing the other party or counsel by saying certain things, then don t say those certain things. d. You always, at the very least, can communicate your and your client s sincere interest in coming to the mediation to negotiate in good faith to try to reach a settlement, and thank the other folks for attending. 11. The purpose of the communications during the mediation process is very different than at trial. a. Direct most of your remarks to the opposing participants who will make the decision regarding settlement -- typically, the other party rather than to the mediator (who will not be making any decisions as to the settlement). b. As a courtesy, occasionally look at the other party s counsel and the mediator while making your comments (it helps make you appear less threatening to the other party, inclusive of that party s counsel, and not forgetful that a mediator is involved in the communications). c. When describing the other parties bad acts, direct your comments to the mediator. The other party will not feel as attacked, but will hear the allegations as being told to a neutral person (such as will be the case with the jury or judge). d. At trial, opposing counsel's "gladiator" role may be to thrust the spear deeply into the other party's position, so as to debilitate it. In mediation, settlement will occur if the parties shift their respective evaluations so as to have them meet, preferably closer to their own evaluation rather than the other party's evaluation. So, : (1) Thank the other participants for attending the mediation and listening to your comments. (2) If it is at least marginally true (and assuming you can do so sincerely and without appearing to be just saying it because it should help you get a better settlement ), comment to the other parties on the high level of professionalism and competency exhibited their counsel, and the exemplary manner in which they have been represented. Of course, that may not always be true, so if not, hold your comments. (Ever been to a mediation and not heard those kind of comments from opposing counsel? Hmmmm?!!) (3) Acknowledge that you are aware that they may not agree with your views, but you at least want to give them the opportunity to understand them. (4) Similarly, you and your client are interested in gaining a better understanding of the other parties views on the disputed issues, and are glad to have that opportunity to do so during the mediation process. (5) The more the participants understand each other's positions and interests, the more likely a mutually agreeable resolution can be found. (6) Remember, use language which will draw the other party towards your client's position, rather than language which will repel the other party. (7) A sincere apology, when made during the mediation process, can be a powerful, effective communication, which may stimulate significant movement towards resolution, and is a protected communication (i.e., privileged and confidential) under TCP&RC Sec

11 (8) Carefully consider the potentially detrimental impact on negotiations, if you or your client are inclined to be acrimonious in your comments directed towards the other participants. (9) This is not the time for jury argument. Save the posturing and "chest beating" for another time. (10) Showcase your clients by having the client speak up, if you believe he/she will be effective in communicating to the other parties. Effective does not necessarily mean the client is a polished speaker; rather one who will likely be perceived by the ultimate fact finder as sincere, perhaps even sympathetic. 12. Unless absolutely necessary, do not "backtrack" from your last settlement proposal made prior to the mediation session. If you feel you must, be prepared to point out the factors which have changed in the interim, and which justify the shift in settlement position. (a) (b) (c) The other party's perception of your good faith may be severely affected detrimentally by your backtracking. Anticipate that the opposing party may be inclined to respond by also backtracking on its last settlement proposal, which inevitably will create considerable delay in the settlement process. Recognize that your or opposing counsel's prior communications of "indications" of acceptable settlements likely will be "heard" as acceptable, and therefore considered a starting point by the listener. 13. Refrain from making any new settlement proposals until you have met in private caucus with the mediator. 14. Normally, discovery which is necessary to evaluate the case will be substantially completed by the time of the mediation session. If not, use the opportunity to share information and documents which will cause the opposing participants to better understand your client's position in the case. B. Private Caucuses. 1. Let your client talk with the mediator, particularly about: a. Facts of case. b. Client's view of damages. c. Client's view of settlement. d. Client's view of the other parties, and opposing counsel. e. Client's life considerations affecting decision-making process. 2. Let your client vent whatever emotions need to be vented, while the mediator is with you, as well as when the mediator is not with you. 3. Be prepared to discuss with the mediator: a. Facts, undisputed and disputed. b. Liability issues, undisputed and disputed. c. Elements of your causes of action. d. Amount of damages (The elements of damages should be written down, and delivered to the other parties before, or at least at the commencement of, the mediation). e. Counterclaims. f. Your professional view regarding the case: (1) Strengths. (2) Weaknesses. (3) Probable and possible jury verdicts. (4) Evaluation of the case by the other parties' counsel. (5) What the other party likely will do, in terms of settling the case. (6) What the other party thinks your client is likely to do, in terms of settling the case. (7) Estimated time and cost to prepare for, and participate in, a trial of the case. 4. Focus on your client's "broader picture", the life considerations which affect, or are affected by, this dispute, or the resolution of the dispute. Do not just focus on what you think will happen at trial. Remember, you are licensed as an "Attorney and Counselor at Law". 5. Be realistic, honest, and forthright with the mediator regarding: a. Possibilities of various results at trial. b. Anticipated effect of case law and court rulings on the probable outcome of this case. c. Impact of expected testimony or depositions of fact and expert witnesses. 7

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