Litigation » Ten Mistakes Lawyers Make in Mediation

Ten Mistakes Lawyers Make in Mediation


First on the list: not nailing down a deal that has just been agreed to. After a long day of haggling that ends in a tentative agreement, parties may pack up and walk out, promising to take a shot at a draft settlement agreement later in the week. That’s a big mistake. Second guessing can occur, and failure to write down the basic terms can increase the likelihood of later disputes. If a fully executed settlement agreement isn’t possible, draft a limited term sheet that lays out the basic parameters of the deal.  Second on the list is treating an unsuccessful mediation as a failure. You may have just spent a day discussing the case. Are there are any non-global agreements that can be reached that will lead to a better chance at a later settlement and/or save legal fees? Think before you walk out the door. Down the list, but still crucial is failure to do your homework. “You may not be able to look under every single rock that can derail a mediation – or even know how many rocks are out there – but you had better identify in advance the key factors that will impact settlement. This homework must include a frank evaluation of future legal fees and costs.”

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