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WMACCA Litigation Forum Don’t Litigate, Mediate: Here’s How © Ifrah PLLC (202) 524-4140 / ifrahlaw.com.

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Presentation on theme: "WMACCA Litigation Forum Don’t Litigate, Mediate: Here’s How © Ifrah PLLC (202) 524-4140 / ifrahlaw.com."— Presentation transcript:

1 WMACCA Litigation Forum Don’t Litigate, Mediate: Here’s How © Ifrah PLLC (202) / ifrahlaw.com

2 Michelle Cohen Member, Ifrah PLLC SPEAKERS 2 The Honorable Stanley P. Klein (Ret.) Mediator, The McCammon Group (and retired Fairfax County Circuit Court judge) James T. Hubler Senior Corporate Counsel, Verisign, Inc. © Ifrah PLLC (202) / ifrahlaw.com

3 AGENDA When to Mediate  Basics  Pros and Cons  Determining Fit Stages of Mediation  Getting to the Table  Preparation  During Mediation  Finalizing Agreement Conclusion  Final Thoughts  Questions? 3 © Ifrah PLLC (202) / ifrahlaw.com

4 MEDIATION BASICS Mediation Defined Mediation is a voluntary, consensual process that uses a trained, neutral third party to facilitate the negotiation of disputes. The goal is to reach a binding settlement agreement. Growing Popularity Companies are increasingly turning to mediation to avoid further litigation expenses and the uncertainty of litigation and to reach a resolution. 4 © Ifrah PLLC (202) / ifrahlaw.com

5 WEIGHING THE PROS AND CONS ADVANTAGES  More Efficient  Assistance of Mediator  Less Formal, Adversarial  Learn Opponent’s Perspective  Confidentiality  Free Discovery DISADVANTAGES  Costly if Protracted  Effect of Trial Judge Mediator  No Precedential Value  Usually Non-binding  Delays Discovery  Free Discovery 5 © Ifrah PLLC (202) / ifrahlaw.com

6 MEDIATION SUCCESS  $765MM mediated settlement between the NFL and 4,500 players and families  Nine-figure settlement seen as a victory for the League Potential liability was much greater Billions of dollars in liability payments Damaging discovery process  Faster resolution better for players and families 6 TOUCHDOWN FOR THE NFL AND THE PLAYERS ASSOC. © Ifrah PLLC (202) / ifrahlaw.com

7 DETERMINING FIT 7 Employment Disputes  Cost savings for company  Quick payment for employee  Avoids reputational damage of public proceeding Consumer Claims  Consumers often have inflated view of their cause  Mediator can offer neutral perspective Complex Litigation  Consider at which stage mediation may be effective  May need substantial discovery first Is Mediation Right For This Matter? © Ifrah PLLC (202) / ifrahlaw.com

8 CONFIDENTIALITY CONSIDERATIONS 8 Additional Considerations Mandatory Reporting  Corporate Reports  Regulatory Filings Potentially Shared with Trial Judge  Pre-mediation discussions  Parties’ attitudes about mediation Governed by State Law General Rules  Materials and communications  Mediated agreement  Attorney work product Frequent Exceptions  Signed written waiver  Evidence otherwise subject to discovery  Certain subsequent proceedings  Threats and criminal activity © Ifrah PLLC (202) / ifrahlaw.com

9 GETTING TO THE TABLE Mandated Mediation Pre-Dispute Agreements Court Ordered Mediation Post-Dispute Agreements 9 © Ifrah PLLC (202) / ifrahlaw.com

10 MEDIATION CLAUSES Clauses Not Always Clear  Is mediation permissive or mandatory  Is formal attempt required or does informal suffice  How is mediator chosen Consider Trial Judge’s Perspective  Have you made good faith efforts  Be prepared to submit evidence of good faith attempts 10 Interpretation and Compliance © Ifrah PLLC (202) / ifrahlaw.com

11 CHOOSING A MEDIATOR Where to Start  Solicit Recommendations What to Consider  Neutrality and Integrity  Subject Matter Expertise  Overall Experience  Style and Individual Characteristics  Geographic Convenience and Availability  Cost How to Evaluate  Resumes  Websites  Reported Decisions  Writings 11© Ifrah PLLC (202) / ifrahlaw.com

12 ENGAGING THE MEDIATOR Mediation Agreement A Tool to Set Expectations and Protect Legal Interests  Explains mediator’s role  Limits mediator’s liability and provides indemnification  Sets forth confidentiality of communications and work product 12 © Ifrah PLLC (202) / ifrahlaw.com

13 PREPARING FOR MEDIATION Discussions Between Mediator and Parties “All Hands” Conference Call  Overview of dispute  Review status of litigation and negotiations  Written submissions  Assure that parties’ decision makers will be present for mediation  Schedule mediation  Tie up loose ends Pre-Mediation Caucuses with Mediator  Ex Parte communications  Discuss critical issues and barriers to settlement 13 © Ifrah PLLC (202) / ifrahlaw.com

14 PREPARING FOR MEDIATION Attorney-Client Planning Educate the Client  Explain mediation process  Outline their side’s strengths and weaknesses Discuss Settlement Authority  Get authority cleared as necessary Set Realistic Expectations  Length, cost, and likelihood of success  Focus on risk assessment, not persuasion Choose Participants  Consider settlement authority, schedules, personality styles, factual knowledge, and expertise 14 © Ifrah PLLC (202) / ifrahlaw.com

15 PRE-MEDIATION SUBMISSION The Mediation Statement  Confidential  Mediator May Set Parameters  Factual Summary  Law Summary  Analysis and Arguments  Settlement Discussions to Date  Conclusion 15 © Ifrah PLLC (202) / ifrahlaw.com

16 ENTERING MEDIATION Posture and Preparedness Flexibility  Whether to set a bottom line  Be prepared for things to change  Avoid arbitrary limit on duration of mediation Good Faith  Not traditional advocacy  Client must comport themselves accordingly  Special considerations if trial judge is mediating Be Prepared to Settle  Have offer/counter-offer ready  Come with a draft agreement 16 © Ifrah PLLC (202) / ifrahlaw.com

17 THE OPENINGS Mediator’s  Introductions  Laying the ground rules  Setting stage  Establishing the tone Parties’  Show strength of your case  Consider the audience  Use of visual aids 17 © Ifrah PLLC (202) / ifrahlaw.com

18 NEGOTIATIONS 18 Strategies to Consider Bargaining Posture  Interest-Based (creative problem solving) or  Positional (adversarial) Initial Offer  Don’t offer everything at the outset, but  Avoid anchoring too far away Movements Toward Settlement  Small, incremental moves versus  Split-the-difference approach Sharing Information with Mediator  To tell them your bottom-line, or not  Equip them with hard questions for opponent Overcoming Impasses  What to do when bottom-lines don’t meet © Ifrah PLLC (202) / ifrahlaw.com

19 EVALUATION STAGE Parties Affected  Multiple defendants  Insurance companies  Who pays what Mediator Input  Mediator must be neutral, competent, and fully informed  May not be appropriate in some cases Full Scope of Implications  Issue spot  Ensure that client understands 19 What to Consider When Considering Their Offer © Ifrah PLLC (202) / ifrahlaw.com

20 NEGOTIATIONS Settlement Offers  Need sufficient authority to bind  Understand what can be offered Monetary compensation Injunctive relief  Design matter-specific relief Employment context Business disputes 20 © Ifrah PLLC (202) / ifrahlaw.com

21 FINALIZING Agreement Reached  Get It In Writing  Outline key terms  Be specific, avoid assumptions  Co-defendant Agreements  Confidentiality Considerations No Agreement  Decide when to terminate  Arrange for follow-up 21 © Ifrah PLLC (202) / ifrahlaw.com

22 THANK YOU QUESTIONS? © Ifrah PLLC (202) / ifrahlaw.com


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