Navigating the “Litigation Highway” – Tips for a Successful Mediation

The “Litigation Highway” is the journey selected by litigants who, rather than looking for strategic and timely “off ramps” to achieve their interests and objectives, become so committed or entrenched in intractable positions that they suffer undue pain, cost, delay, and unpredictability of a trial. 

Because litigation is not a profit center for most businesses and individual litigants, it has become commonplace to either avoid the Litigation Highway through an early mediation (often even before the filing of a complaint), or engage in mediation in the search for an effective off ramp once on the hellacious Litigation Highway.  Experience and studies have shown that mediation has and does achieve a client’s true interests in a manner that is often superior to traditional litigation and arbitration and without the pain, cost, delay, unpredictability, and risk. 

All experienced litigators and mediators know there are a number of action steps that will maximize the potential of success for their clients at the time of mediation.  I’ve created a new category in the blog that includes tips for successful mediations, which have served me well during hundreds of mediations where I have either served as a neutral mediator or have represented clients.   

1. Select the Right Mediator, Select the Right Process
2. Prepare and Then Prepare Some More
3. Write a Short, Succinct and Professional Mediation Summary
4. An Opening Statement and a Carefully Orchestrated Joint Session Can Have a Positive Impact
5. To Share or Not to Share
6. Develop a Negotiating Strategy and Plan Ahead
7. When to Disclose the Bottom Line Should Is a Strategic Decision
8. You Will Learn More by Listening Than by Talking
9. Litigation Advocacy and Mediation Advocacy are Different
10. Think "Team" and Harness the Power of Positive Conflict

I hope these tips are thought provoking and helpful in achieving a very positive and productive mediation process for your clients.  Particularly when dealing with clients who are not familiar with the mediation process, I have provided these tips to my clients and have found them very effective in explaining and preparing clients for the mediation process and the search for a strategic “off ramp.”   Like any checklist or listing of tips they must be tempered and adapted to the particular dictates of the dispute and the client’s objectives.   

Any comments and suggestions you might have for improving or enhancing these tips are truly welcome and invited.  We all embrace the importance of continuous improvement.   Please submit your comments to me at richard@hurfordresolution.com.