1. HOW ONE GETS THROUGH A MEDIATION MEETING OR Getting Them To Go Away

2. MEDIATION LIFE CYCLE 1) Identify “Failures to Perform” based on Contract Provisions * Key: Documentation * 2) Organize Evidence for Each Failure to Perform *Time Line * 3) Plan Mediation Meeting * Pro & Con * 4) Rehearse the Meeting * Takes Forever * 5) Mediation Presentation: Offense and Defense * Tough Day * 6) The Decision * The Legal View *

3. IDENTIFY “FAILURES TO PERFORM” BASED ON CONTRACT PROVISIONS Keys:- Complete/Official Documentation of Full Life Cycle Quality Contract that INCLUDES Vendor Proposal & Commitments - Include Both Contract Provisions and Proposal Promises

4. ORGANIZE EVIDENCE BY EACH FAILURE TO PERFORM FOR EACH CONTRACT PROVISION TIME LINE APPROACH MATCHES NORMAL TRIAL PROCEDURE Keys:- Overall Time Line Showing Phases and Tragedies - Detailed Time Lines including ALL Failures to Perform TYPICAL CLAIMS AGAINST VENDOR - Inadequate Project Management Work Plan, Scope Management, Progress Reporting, Staffing, Change Management - Lack of Performance in terms of Following: Statement of Work, Methodologies - Project Delays caused by: Staffing, Deliverables Quality TYPICAL CLAIMS AGAINST YOU - Expansion (Creep) of Scope - Increase in Stakeholders - Resolution of Policy/Procedure Differences

5. PLAN THE MEDIATION MEETING ANALYZE BOTH SIDES: The GOOD & The BAD Key:- Knowledgeable DEVILS ADVOCATE(S) - Use Project People as well as Lawyers OUTLINE OF RECENT MEDIATION MEETING Objectives of Mediation Summary of Dispute Both Your Views & Vendors Claims Against Vendor (Each Reason for Vendor Default) - Project Management Problems - Lack of Performance Problems - Project Delays - Cost Basis of Claims  Response to Vendors Positions & Claims - Scope Issues - Project Delays By Users - Cost Claims By Vendor

6. REHEARSE THE MEETING Takes Forever * Use Flip Charts Rehearse your Technical People Until They Say the ‘Right Thing’ Takes Hours for Each Person Have a Full Script for Lawyers to Review A Two Inch Binder MEDIATION MEETING: OFFENSE AND DEFENSE Tough Day * Some Suggestions: Use Your Devils Advocate as MC Use ALL your Relevant Technical & Managerial Personnel Speak Only to The Mediator Your Lawyers Really Don’t Have to Present

7. THE DECISION * The Legal View * A TYPICAL OPINION Many of your claims appear to be “Failures to Perform”, but each is NOT of itself sufficient to VOID THE CONTRACT FOR VENDOR DEFAULT. Perhaps a JURY OR ARBITRATOR MIGHT consider the SUM of the Failures Sufficient to VOID THE CONTRACT FOR VENDOR DEFAULT

8. SO Give Them Some Money to GO AWAY OR Go To Trial; Which Will Probably Cost You More