By Attorney Howard Iken: I always try to remind clients that mediation is a “contact sport.” What I really mean is that mediation involves preparation, strategy, posturing, negotiation, and threats (the threat of continued litigation). You cannot get a decent settlement if the other side thinks you are weak and ready to abandon ship. You cannot force flexibility on the other side unless they have a fear of ending up with a bad outcome. Mediation is an art. Those who think mediation is warm, fuzzy, and completely
cooperative are not getting the true story. Another cardinal sin is to look like or sound like you will not go to trial. During mediation you must imply, talk about, and look forward to trial. That is the ultimate fear of each party – going to trial. A failed mediation means both attorneys will ask for large trial retainers. The large trial retainers are only the beginning. Preparing for trial can be exhaustive and nerve wracking – and it makes people REALLY nervous. That is the whole principle of mediation. In one session you can eliminate the cost, nervousness, and long wait. A good strategy is to take advantage of the fear and potential relief. The other side will have nothing to fear if you look like you want out of the case really bad. So remember these tips next time you are in mediation: look strong, act tough, and look like you are itching to go trial. Combine that flexible thinking-on-your-feet and you have a great chance of coming out well. And remember that our attorneys can represent you for mediation-only if that is what you need.