“Failing to Prepare Is Preparing for Failure”— John Wooden
Mediations should provide clients with a genuine opportunity and an optimal environment to make informed and rational decisions on whether, and on what terms, to resolve disputes by settlement rather than litigation and trial.
To that end, Mr. Spector prepares for mediations by carefully studying court papers and confidential mediation statements furnished by the parties’ lawyers to understand the factual questions and legal issues involved. By doing so, he is prepared to discuss the merits of the case, thereby enabling counsel and the parties to better assess the likelihood of a favorable or unfavorable outcome if the case does not settle.
Time and circumstances permitting, Mr. Spector speaks with all counsel (separately or collectively) before and, if necessary, following the mediation to help him better understand the legal issues and factual questions presented, the emotional “terrain” of the dispute, as well as the parties’ respective core interests and needs, with the express understanding that all such conversations are privileged.
Mr. Spector expects parties and their attorneys to prepare for mediation because, in the words of John Wooden, “failing to prepare is preparing for failure.”
In preparation for mediation Mr. Spector expects each attorney and client to discuss the following:
- The client’s expectations, goals and objectives in the resolving the dispute
- Attorneys’ fees, experts’ fees, and costs incurred to date
- Through trial and post-trial motions projected attorneys’ and experts’ fees along with likely costs (e.g. ESI, travel, court reporters, videographers, trial graphics, electronic courtroom technology, etc.)
- The strengths and weaknesses of the client’s case
- The range of litigation outcomes, from the client’s best case scenario (sometimes referred to as the “BATNA” or best alternative to a negotiated agreement) to the worst case scenario, and the probability of each identifiable outcome
- The benefits of a negotiated settlement and the most significant reasons settlement may be preferable to litigation and trial
- The tax implications of a settlement and what attorney will provide tax advice on any such issues
- Who will attend the mediation and how the process works
- A negotiation plan for the mediation
Necessary Decision-Making Information
Mediations often impasse or adjourn because a party lacks or claims to lack information in the possession of the adverse party necessary to making a decision (e.g. damage calculations and supporting documentation, expert disclosures/reports, financial information where inability to satisfy a judgment is an issue). Mr. Spector asks that he be contacted immediately if counsel lacks any such information so he can facilitate the exchange and disclosure process. Unless counsel advise otherwise, Mr. Spector assumes the parties have all information necessary to make a settlement decision at mediation.