Published: October 2023
Written by: Mark Greenberg

As attorneys, your role in mediation is pivotal to achieving a favorable outcome for your client. To facilitate a successful settlement, it’s essential to provide comprehensive and accurate information to the mediator.  This Mediation Summary Outline will guide you in providing the material to ensure a productive mediation, resulting in a more likely settlement for your client.  

1. Case Information:

• Case Name: Clearly identify the case being mediated.
• Trial Date: Specify the trial docket, and for state court if this is an actual trial order or estimated date from a case management order.
• Trial Venue: Indicate the location where the trial is set to take place.
• Judge: Mention the presiding judge overseeing the case.
• Jury or Non-Jury: State whether the trial is jury or bench.

2. Type of Case:

• Describe the nature of the case, including legal issues and claims involved.

3. Attorney’s Fees:

• Specify whether attorney’s fees are a significant concern in the case.

4. Negotiation History:

• Most Recent Demand and Date: Share the most recent settlement demand and the date it was made.
• Most Recent Offer and Date: Provide the most recent settlement offer and the date it was extended.

5. Case Summary:

• Present a concise overview of the case, including key facts, legal arguments, and the current status of litigation.

6. Key Case Factors:

• Strengths: Highlight your client’s strongest arguments or evidence that favor their position.
• Weaknesses: Acknowledge any aspects of the case that might be challenging or unfavorable to your client.
• Opposing Side’s Strengths: Identify the opposing party’s most compelling arguments or evidence.
• Opposing Side’s Weaknesses: Note any vulnerabilities or weaknesses in the opposing party’s case.

7. Client’s Settlement Objectives:

• Clearly state your client’s goals for settlement, including desired outcomes beyond monetary compensation.

8. Verdict Range:

• What is your client’s best day in court?
• What is your client’s worst day in court?
• What are the realistic range of verdicts?
• Availability of Similar Case Verdicts: If applicable, share information on past verdicts for cases similar to yours.

9. Discovery Status:

• Describe significant discovery completed and highlight any pending or outstanding discovery.

10. Trial Cost Estimate:

• Provide an estimate of the potential cost to your client if the case proceeds to trial.

11. Critical Motions and Rulings:

• Identify any critical motions, like Daubert challenges or motion for summary judgment, that may affect the case outcome. Note any rulings issued thus far.

12. Important Settlement Terms:

• Detail any unique settlement terms that may be of interest to your client, such as confidentiality agreements, non-compete clauses, or non-disparagement provisions.

13. Additional Concerns:

• Address any other issues or concerns that could impact the settlement process or case resolution.

14. Communication with Mediator:

• Indicate whether you’d like to speak with the mediator before the mediation session.

15. Supporting Documents:

• Gather and provide relevant documents, such as contracts, expert reports, photographs, repair estimates, HOA documents, and other evidence to help the mediator fully understand the case.

In conclusion, successful mediation hinges on effective communication and thorough preparation. By providing the mediator with a comprehensive Mediation Summary Outline, you lay the foundation for a productive negotiation process that can lead to a mutually acceptable settlement. Remember, your input as attorneys plays a vital role in shaping the mediation’s success and achieving a favorable outcome for your clients.

Mark Greenberg is the President of Breakthrough Mediation. He has tried over 100 cases to verdict, representing both Plaintiffs and Defendants in state and federal court. He now mediates cases throughout Florida, saving clients over $100 million dollars in legal expenses, while helping them find peace in the resolution of contentious disputes. www.btmediation.com

For additional ADR tips and resources, go to www.palmbeachbar.org/alternative-dispute-resolution-committee 

Published: September 2023
Written by: Adam Myron

If you’ve ever tried to get a six-year-old to eat vegetables, you know that children can be masterful negotiators.  I know I’ve had the following conversation many times:

“You have to eat all your carrots and broccoli.  No ice cream until you do.” 

“I can eat all that. I’ll eat three carrots and two pieces of broccoli.”

“Fine, just eat already.”

“And I want two scoops of ice cream.”

“Don’t push your luck…”

Everyone’s interests are met in these negotiations.  Here, my interest in ensuring my child eats vegetables is met, even if it comes at the cost of replacing a few vegetables with a little ice cream.  My child’s interests in getting dessert and not eating too many vegetables are met, at the mere cost of having to eat a few vegetables.  Everyone is a winner.

The frequency of such negotiations with my own children got me wondering: How do some human beings develop effective negotiation skills at an early age?  Fully answering that question would likely require a much more complicated and lengthy discussion than the space limitations of this article will allow.  However, I suspect that at least part of the answer lies in the fact that the stories, fables, and parables that parents and other caregivers tell children include morals and lessons that mirror the foundational principles upon which effective negotiations are built.  Consider the following examples.

In The Boy Who Cried Wolf, a mischievous child tasked with notifying neighbors of threats to the village gets a good laugh by sounding multiple false alarms of “wolf” until the day that an actual wolf appears and no one believes his cries to be true.  The result: happy wolf; not so happy boy.  Through this story, children learn the importance of building and maintaining trust, a key ingredient to an effective negotiation.  It may seem obvious, but if you fail to build trust with your negotiating partner (I use the term negotiating “partner” because I believe it’s counterproductive to think of that person as an adversary), you are much less likely to achieve as good of a negotiated outcome as you would have achieved if your partner had confidence in the accuracy and veracity of the information and perspectives you conveyed during the negotiation.

In The Tortoise and the Hare, a steady and persistent tortoise wins a footrace against an overeager and easily distracted hare.  The morals embedded in The Tortoise and the Hare are useful to remember at the negotiating table because negotiating is an arduous task.  It can take a lot of time, and it works best when the parties are focused and do not rush. 

In The Lion and the Mouse, the king of the jungle steps on a thorn.  He roars and howls with pain until a mouse, who could easily take advantage of the situation by leaving the lion to his misery, instead pulls the thorn from the lion’s paw.  Through an act of kindness, the mouse gains a powerful lifelong friend. The Lion and the Mouse teaches children the values of trust, empathy, and compassion.  When those values are put into practice during the negotiation process, negotiators are better able to understand perspectives that differ from their own; and, by putting themselves in the shoes of their negotiating partners, they can better understand the interests and incentives that will facilitate better-negotiated outcomes.

The Lion and the Mouse also serves as an excellent example of how to overcome a cognitive bias known as the fundamental attribution error, which is the tendency to explain other people’s behavior by placing too much emphasis on internal dispositional factors and too little emphasis on external situational factors.  In the story, the mouse has to overcome the urge to ascribe the lion’s roaring to a fierce aggressive disposition and consider that the lion’s behavior was the result of some external cause (specifically, stepping on a thorn).  Resisting that urge opened a pathway to compassion and empathy, which resulted in a positive outcome for both the lion and the mouse.

We navigate life by constantly negotiating.  Sometimes, negotiations are with other people (how do you and I resolve our conflict?), sometimes they’re with the environment (how do I get from point A to point B?), and sometimes they’re with ourselves (how will I reward myself later for hard work I do now?).  Often, we negotiate with those to whom we owe the greatest duty of care: the next generation of children who one day will be the stewards of the planet.  So although it might result in a few less vegetables and a little more ice cream eaten at suppertime, I’m still glad that the fables and stories we tell children are grounded in principles for future success.

Adam Myron is an attorney with the law firm of Cagnet Myron Law, P.A., where, as a Florida Supreme Court Certified Circuit Mediator and a Florida Qualified Arbitrator, he focuses a large part of his practice on alternative dispute resolution.  Adam is also a civil litigator in the fields of complex business litigation, trust & estate litigation, and professional liability litigation. You can email Adam at [email protected] and learn more about him by visiting https://cagnetmyronlaw.com/about/attorneys/adam-myron/.

For additional ADR tips and resources, go to https://www.palmbeachbar.org/alternative- dispute-resolution-committee/.