Nothing contained herein is intended to give legal advice. Individuals should always consult with an attorney before entering into a contract
Mediation What is mediation? "Mediation" is a process in which a neutral third party facilitates ADR communication between parties to promote settlement and assist them in reaching a voluntary agreement regarding their dispute. A "mediator" is the individual who conducts the mediation. A mediator may not impose his or her own judgment on the issues for that of the parties. Jay Daugherty Mediation and Arbitration provides the ability to schedule your mediation online without multiple efforts or phone calls. Why use a JDM mediator? Between our three Mediators we have conducted over 5,000 mediations handling the Kansas City region’s and the nation’s biggest and most complex cases. Judge Daugherty and Judge Schieber served as a Circuit Judge’s for a combined 35 years and bring judicial neutrality. John Phillips brings a lifetime of litigation experience as well as a long history in the practice of mediation and arbitration. All have honed their mediation skills by conducting settlement negotiations and mediations in thousands of cases of every type and size including, but not limited to: personal injury and tort, complex multi-party business cases, class actions, construction, product liability, malpractice, personal injury,environmental, employment discrimination, commercial/business, real estate, condemnation and insurance coverage/bad faith claims. Their skills are grounded in judicial careers and/or long litigation legal careers where they have presided over hundreds of jury trials and/or tried complex jury trials trials. In particular, John and Jay have helped lead the development of Missouri's dispute resolution practice by serving for years on the Missouri Supreme Court ADR Commission developing and refining Rile 17. "Our mediation goals extend beyond merely achieving a resolution of the case. Disputes are also about emotion. Results of the mediation should please the clients --- and clients should leave the mediation with an enhanced regard for their attorneys." Mediation Fees The billing rate for all of our Mediators is $425 per hour for preparation and conducting most mediations. However, the rate is $495 per hour for class action/multiparty cases if the mediation involves 4 or more parties. If the matter does not settle as a result of the mediation, our Mediators will continue to mediate the case by phone as long as there is any possibility mediation can resolve the case. There is no charge for follow up services unless the follow-up sessions are very time consuming and the time results in a settlement. For mediations requiring travel outside of the metropolitan area, any travel time is billed at 1/2 the hourly rate plus reasonable expenses for lodging, food and air. The parties to the case will share all mediation fees and expenses equally, unless otherwise agreed. The best location for your mediation You, the parties, choose where our Mediators will conduct the mediation and we are comfortable conducting your mediation wherever you desire. One important consideration in choosing the site for your mediation is whether you desire a neutral site. Mediation studies show the use of a neutral site is preferable to mediating at one of the party's law offices. The Jay Daugherty Mediation Conference Center (JDMCC) has premier space with multiple conference rooms that are ideal for your mediation or arbitration. Our offices are centrally located on The Plaza in Kansas City, with convenient complimentary parking. See location, directions and contact information on this website. Why utilize mediation services? 1) High satisfaction: Studies show that a mediated resolution satisfies parties more than when a court imposes a decision on the parties. 2) Your own personally designed settlement: the parties, with the assistance of a truly neutral mediator, help create the resolution of the dispute themselves. Using a skilled mediator with a judicial background or long litigation background only enhances the mediation experience as parties have a greater sense of justice and a feeling of having had their day in court. 3) Saves money: mediation saves litigation expenses. 4) Voluntary: A third-party will not force a resolution or decision on any party. This is much different than the forced resolutions that happen at trial or in arbitration. 5) Mediation is confidential: By meeting separately with the parties by caucus, a mediator can confidentially and informally explore settlement options without traditional posturing and can consider settlement options without the parties needing to reveal their final positions. 6) Helps preserve continuing relationships: In most business situations the parties who mediate their disputes will work together again in the future. Mediation limits the animosity between the parties. This is particularly true in the construction/contractor setting, commercial business situations, contracts and all types of employment relations. Scheduling your mediation 1) Online: The most convenient way. You and your counterpart go online from the comfort of your own office. Use our online "schedule mediation" calendar tool located on this website to mutually select your date, fill out the required "Schedule Mediation" form and submit the request by email. You will receive confirmation of your scheduled mediation within one day. 2) call JDM directly for a more personal touch and one of our assistants will help you schedule your mediation: 816-931-6300 (Office). If you prefer, you may also download and complete the form, then email it to ronda@jaydaughertymediation.com. Preparing for Your Mediation Preparation is the key to a successful mediation from the standpoint of an attorney and your mediator as a successful mediation depends on both the mediator's and counsel's preparation. The parties' lack of preparation can present an insurmountable obstacle to settlement. Counsel should treat preparing for mediation as the equal of preparing for any other significant step in the case. If you want to enhance your chances of settling at the mediation, preparation is your key. 1) Prepare Your Client: If this is your client's first mediation, walk him through the process, and explain what to expect from the opening session, caucuses, and down time. Explain the nature of mediation, particularly why and how mediation is different from trial in a courtroom. Make sure that your client understands the strengths and weaknesses of the case, including the downside risks, uncertainties and costs of continuing litigation. 2) Be realistic and don't let your client get stuck in an unrealistic mode of thinking that the case is a "home run". Your client will not want to negotiate if he gets anchored to a specific result, outcome or dollar amount. Help client be flexible and open minded. 3) Encourage your client to interact with the mediator on a personal level, treating the mediator as a confidant and not an adversary the client must persuade. 4) Prepare for mediation, not trial: in mediation, attorney advocacy has to take a back seat to negotiation. Strong advocacy tends to provoke a similar response in the client and can lead to the hardening of bargaining positions. 5) Evaluate the strengths and weaknesses of your client's case objectively. What is the most likely - not potential - range of a jury verdict in the case? What conclusions is the judge most likely to make? 6) Resist the temptation to take on your client's animosity toward the adversary or adverse counsel. Keep your distance from your client's anger - it is best for your client and will benefit the mediation. 7) Exchange information if you have not done so, consider a fullexchange of non-confidential information about the case with the other side before the mediation. It is an easy way to avoid fact disputes that sometimes get in the way of serious negotiations. 8) Prepare mediation briefs for the mediator that include a timeline, the facts, the law, important discovery issues, summary judgment or dismissal suggestions in support, possible trial issues including difficult evidentiary issues, instructional issues or any other matter potentially relevant to the case and thus the mediation. This is your opportunity to have an experienced trial judge or litigator give you a sense of likely rulings on legal arguments or evidence. During the Mediation 1) Do your best to maintain an attitude that will facilitate discussion of issues and negotiations. Do not criticize the other party or lawyer, complain about their "tactics" or negotiation style, or question whether they are negotiating in good faith. 2) Be patient. Don't pursue a "cut to the chase" negotiation strategy and make your "final" offer right away. In the thousands of mediations we have handled, this strategy has never yet resulted in settlement. Why? Because the other side will not believe your offer is truly final if it comes too early in the mediation. By doing so you will either create an impasse before the parties have had time to reach the zone of potential settlement, or you will have to capitulate and continue negotiating beyond your "final" position. 3) Avoid spending time negotiating in a place beyond the likely range of settlement discussions. It tends to discourage the other side from taking you seriously, and might bring about impasse when there is still plenty of negotiating room on both sides. 4) Be honest with your client despite a natural reluctance to give your client a candid (i.e. negative) assessment of the case for fear of seeming disloyal or uncommitted. The mediator’s assessment can help the client avoid responsibility for compromising the case and their principles. Let the mediator help you bring reality to your client's perspective. 5) Do not use surprise as a negotiation tactic - it may embarrass opposing counsel and cause the lawyer and her client to react by engaging in similar tactics, which can lead to a breakdown in negotiations. The Mediation Session: What takes place? 1) All parties will be present as well as counsel. Typically an insurance representative will also be present and/or an owner or manager of a business, depending on the case type. 2) All participants meet in a joint session. After the mediator's introductory remarks and the signing of the Agreement to Mediate, the parties may proceed immediately to caucusing, or each party may make an opening statement, depending on the most productive style of mediation for the case. This will be determined prior to the mediation. 3) Caucuses: After the joint session, the mediator will meet privately with both sides in separate meetings or caucuses. In these confidential sessions the mediator discusses the case with counsel and the parties, assesses the risks of the case, considers the best and worst outcomes, the quality of the evidence, the costs of litigation and other factors. The mediator will explore possible settlements, and will likely go back and forth between the parties to explore possible settlements. 4) Written Agreement: When the parties reach a settlement, it will be reduced to writing as required by Missouri law. If the case doesn't settle? While most cases do settle at the mediation, if the case does not settle during the mediation, our Mediators will conduct follow up mediation sessions by phone until they have made all reasonable efforts to resolve the case. There will be no charge for these phone sessions unless they become extensive and the post mediation efforts result in a settlement of the case. Sometimes the parties need a second faceto face mediation session. In that event, the parties will schedule and our Mediators will conduct the added sessions like the initial face to face session. There are additional hourly charges for these supplementary face to face sessions. Confidentiality The parties recognize that mediation proceedings are settlement negotiations and that all aspects of the mediation are inadmissible in any related litigation or arbitration proceedings. Evidence that is admissible or otherwise discoverable shall not be rendered inadmissible or nondiscoverable as a result of its use in the mediation session. In the event the parties do reach a settlement, the terms of the agreement will be reduced to writing and may be admissible in any effort to enforce the settlement agreement, unless the parties agree otherwise. Any information disclosed to the mediator in private caucus shall remain confidential unless the party agrees it may be disclosed. Mediator Not Acting As Legal Counsel for Any Party All parties recognize that during the mediation session and at all other points in the proceeding: the mediator is not acting as legal counsel for or as a representative of any of the parties engaged in the mediation; the mediator has no duty to assert, analyze, inform or protect any legal right or obligation; the mediator has no duty to make an independent expert analysis or raise issues the parties do not raise; and the mediator cannot guarantee the mediation will result in a settlement.
Nothing contained herein is intended to give legal advice. Individuals should always consult with an attorney before entering into a contract
Mediation What is mediation? "Mediation" is a process in which a neutral third party facilitates ADR communication between parties to promote settlement and assist them in reaching a voluntary agreement regarding their dispute. A "mediator" is the individual who conducts the mediation. A mediator may not impose his or her own judgment on the issues for that of the parties. Jay Daugherty Mediation and Arbitration provides the ability to schedule your mediation online without multiple efforts or phone calls. Why use a JDM mediator? Between our three Mediators we have conducted over 5,000 mediations handling the Kansas City region’s and the nation’s biggest and most complex cases. Judge Daugherty and Judge Schieber served as a Circuit Judge’s for a combined 35 years and bring judicial neutrality. John Phillips brings a lifetime of litigation experience as well as a long history in the practice of mediation and arbitration. All have honed their mediation skills by conducting settlement negotiations and mediations in thousands of cases of every type and size including, but not limited to: personal injury and tort, complex multi-party business cases, class actions, construction, product liability, malpractice, personal injury,environmental, employment discrimination, commercial/business, real estate, condemnation and insurance coverage/bad faith claims. Their skills are grounded in judicial careers and/or long litigation legal careers where they have presided over hundreds of jury trials and/or tried complex jury trials trials. In particular, John and Jay have helped lead the development of Missouri's dispute resolution practice by serving for years on the Missouri Supreme Court ADR Commission developing and refining Rile 17. "Our mediation goals extend beyond merely achieving a resolution of the case. Disputes are also about emotion. Results of the mediation should please the clients --- and clients should leave the mediation with an enhanced regard for their attorneys." Mediation Fees The billing rate for all of our Mediators is $425 per hour for preparation and conducting most mediations. However, the rate is $495 per hour for class action/multiparty cases if the mediation involves 4 or more parties. If the matter does not settle as a result of the mediation, our Mediators will continue to mediate the case by phone as long as there is any possibility mediation can resolve the case. There is no charge for follow up services unless the follow-up sessions are very time consuming and the time results in a settlement. For mediations requiring travel outside of the metropolitan area, any travel time is billed at 1/2 the hourly rate plus reasonable expenses for lodging, food and air. The parties to the case will share all mediation fees and expenses equally, unless otherwise agreed. The best location for your mediation You, the parties, choose where our Mediators will conduct the mediation and we are comfortable conducting your mediation wherever you desire. One important consideration in choosing the site for your mediation is whether you desire a neutral site. Mediation studies show the use of a neutral site is preferable to mediating at one of the party's law offices. The Jay Daugherty Mediation Conference Center (JDMCC) has premier space with multiple conference rooms that are ideal for your mediation or arbitration. Our offices are centrally located on The Plaza in Kansas City, with convenient complimentary parking. See location, directions and contact information on this website. Why utilize mediation services? 1) High satisfaction: Studies show that a mediated resolution satisfies parties more than when a court imposes a decision on the parties. 2) Your own personally designed settlement: the parties, with the assistance of a truly neutral mediator, help create the resolution of the dispute themselves. Using a skilled mediator with a judicial background or long litigation background only enhances the mediation experience as parties have a greater sense of justice and a feeling of having had their day in court. 3) Saves money: mediation saves litigation expenses. 4) Voluntary: A third-party will not force a resolution or decision on any party. This is much different than the forced resolutions that happen at trial or in arbitration. 5) Mediation is confidential: By meeting separately with the parties by caucus, a mediator can confidentially and informally explore settlement options without traditional posturing and can consider settlement options without the parties needing to reveal their final positions. 6) Helps preserve continuing relationships: In most business situations the parties who mediate their disputes will work together again in the future. Mediation limits the animosity between the parties. This is particularly true in the construction/contractor setting, commercial business situations, contracts and all types of employment relations. Scheduling your mediation 1) Online: The most convenient way. You and your counterpart go online from the comfort of your own office. Use our online "schedule mediation" calendar tool located on this website to mutually select your date, fill out the required "Schedule Mediation" form and submit the request by email. You will receive confirmation of your scheduled mediation within one day. 2) call JDM directly for a more personal touch and one of our assistants will help you schedule your mediation: 816-931-6300 (Office). If you prefer, you may also download and complete the form, then email it to ronda@jaydaughertymediation.com. Preparing for Your Mediation Preparation is the key to a successful mediation from the standpoint of an attorney and your mediator as a successful mediation depends on both the mediator's and counsel's preparation. The parties' lack of preparation can present an insurmountable obstacle to settlement. Counsel should treat preparing for mediation as the equal of preparing for any other significant step in the case. If you want to enhance your chances of settling at the mediation, preparation is your key. 1) Prepare Your Client: If this is your client's first mediation, walk him through the process, and explain what to expect from the opening session, caucuses, and down time. Explain the nature of mediation, particularly why and how mediation is different from trial in a courtroom. Make sure that your client understands the strengths and weaknesses of the case, including the downside risks, uncertainties and costs of continuing litigation. 2) Be realistic and don't let your client get stuck in an unrealistic mode of thinking that the case is a "home run". Your client will not want to negotiate if he gets anchored to a specific result, outcome or dollar amount. Help client be flexible and open minded. 3) Encourage your client to interact with the mediator on a personal level, treating the mediator as a confidant and not an adversary the client must persuade. 4) Prepare for mediation, not trial: in mediation, attorney advocacy has to take a back seat to negotiation. Strong advocacy tends to provoke a similar response in the client and can lead to the hardening of bargaining positions. 5) Evaluate the strengths and weaknesses of your client's case objectively. What is the most likely - not potential - range of a jury verdict in the case? What conclusions is the judge most likely to make? 6) Resist the temptation to take on your client's animosity toward the adversary or adverse counsel. Keep your distance from your client's anger - it is best for your client and will benefit the mediation. 7) Exchange information if you have not done so, consider a fullexchange of non-confidential information about the case with the other side before the mediation. It is an easy way to avoid fact disputes that sometimes get in the way of serious negotiations. 8) Prepare mediation briefs for the mediator that include a timeline, the facts, the law, important discovery issues, summary judgment or dismissal suggestions in support, possible trial issues including difficult evidentiary issues, instructional issues or any other matter potentially relevant to the case and thus the mediation. This is your opportunity to have an experienced trial judge or litigator give you a sense of likely rulings on legal arguments or evidence. During the Mediation 1) Do your best to maintain an attitude that will facilitate discussion of issues and negotiations. Do not criticize the other party or lawyer, complain about their "tactics" or negotiation style, or question whether they are negotiating in good faith. 2) Be patient. Don't pursue a "cut to the chase" negotiation strategy and make your "final" offer right away. In the thousands of mediations we have handled, this strategy has never yet resulted in settlement. Why? Because the other side will not believe your offer is truly final if it comes too early in the mediation. By doing so you will either create an impasse before the parties have had time to reach the zone of potential settlement, or you will have to capitulate and continue negotiating beyond your "final" position. 3) Avoid spending time negotiating in a place beyond the likely range of settlement discussions. It tends to discourage the other side from taking you seriously, and might bring about impasse when there is still plenty of negotiating room on both sides. 4) Be honest with your client despite a natural reluctance to give your client a candid (i.e. negative) assessment of the case for fear of seeming disloyal or uncommitted. The mediator’s assessment can help the client avoid responsibility for compromising the case and their principles. Let the mediator help you bring reality to your client's perspective. 5) Do not use surprise as a negotiation tactic - it may embarrass opposing counsel and cause the lawyer and her client to react by engaging in similar tactics, which can lead to a breakdown in negotiations. The Mediation Session: What takes place? 1) All parties will be present as well as counsel. Typically an insurance representative will also be present and/or an owner or manager of a business, depending on the case type. 2) All participants meet in a joint session. After the mediator's introductory remarks and the signing of the Agreement to Mediate, the parties may proceed immediately to caucusing, or each party may make an opening statement, depending on the most productive style of mediation for the case. This will be determined prior to the mediation. 3) Caucuses: After the joint session, the mediator will meet privately with both sides in separate meetings or caucuses. In these confidential sessions the mediator discusses the case with counsel and the parties, assesses the risks of the case, considers the best and worst outcomes, the quality of the evidence, the costs of litigation and other factors. The mediator will explore possible settlements, and will likely go back and forth between the parties to explore possible settlements. 4) Written Agreement: When the parties reach a settlement, it will be reduced to writing as required by Missouri law. If the case doesn't settle? While most cases do settle at the mediation, if the case does not settle during the mediation, our Mediators will conduct follow up mediation sessions by phone until they have made all reasonable efforts to resolve the case. There will be no charge for these phone sessions unless they become extensive and the post mediation efforts result in a settlement of the case. Sometimes the parties need a second faceto face mediation session. In that event, the parties will schedule and our Mediators will conduct the added sessions like the initial face to face session. There are additional hourly charges for these supplementary face to face sessions. Confidentiality The parties recognize that mediation proceedings are settlement negotiations and that all aspects of the mediation are inadmissible in any related litigation or arbitration proceedings. Evidence that is admissible or otherwise discoverable shall not be rendered inadmissible or nondiscoverable as a result of its use in the mediation session. In the event the parties do reach a settlement, the terms of the agreement will be reduced to writing and may be admissible in any effort to enforce the settlement agreement, unless the parties agree otherwise. Any information disclosed to the mediator in private caucus shall remain confidential unless the party agrees it may be disclosed. Mediator Not Acting As Legal Counsel for Any Party All parties recognize that during the mediation session and at all other points in the proceeding: the mediator is not acting as legal counsel for or as a representative of any of the parties engaged in the mediation; the mediator has no duty to assert, analyze, inform or protect any legal right or obligation; the mediator has no duty to make an independent expert analysis or raise issues the parties do not raise; and the mediator cannot guarantee the mediation will result in a settlement.
Nothing contained herein is intended to give legal advice. Individuals should always consult with an attorney before entering into a contract
What is mediation? "Mediation" is a process in which a neutral third party facilitates ADR communication between parties to promote settlement and assist them in reaching a voluntary agreement regarding their dispute. A "mediator" is the individual who conducts the mediation. A mediator may not impose his or her own judgment on the issues for that of the parties. Jay Daugherty Mediation and Arbitration provides the ability to schedule your mediation online without multiple efforts or phone calls. Why use a JDM mediator? Between our three Mediators we have conducted over 5,000 mediations handling the Kansas City region’s and the nation’s biggest and most complex cases. Judge Daugherty and Judge Schieber served as a Circuit Judge’s for a combined 35 years and bring judicial neutrality. John Phillips brings a lifetime of litigation experience as well as a long history in the practice of mediation and arbitration. All have honed their mediation skills by conducting settlement negotiations and mediations in thousands of cases of every type and size including, but not limited to: personal injury and tort, complex multi-party business cases, class actions, construction, product liability, malpractice, personal injury,environmental, employment discrimination, commercial/business, real estate, condemnation and insurance coverage/bad faith claims. Their skills are grounded in judicial careers and/or long litigation legal careers where they have presided over hundreds of jury trials and/or tried complex jury trials trials. In particular, John and Jay have helped lead the development of Missouri's dispute resolution practice by serving for years on the Missouri Supreme Court ADR Commission developing and refining Rile 17. "Our mediation goals extend beyond merely achieving a resolution of the case. Disputes are also about emotion. Results of the mediation should please the clients --- and clients should leave the mediation with an enhanced regard for their attorneys." Mediation Fees The billing rate for all of our Mediators is $425 per hour for preparation and conducting most mediations. However, the rate is $495 per hour for class action/multiparty cases if the mediation involves 4 or more parties. If the matter does not settle as a result of the mediation, our Mediators will continue to mediate the case by phone as long as there is any possibility mediation can resolve the case. There is no charge for follow up services unless the follow-up sessions are very time consuming and the time results in a settlement. For mediations requiring travel outside of the metropolitan area, any travel time is billed at 1/2 the hourly rate plus reasonable expenses for lodging, food and air. The parties to the case will share all mediation fees and expenses equally, unless otherwise agreed. The best location for your mediation You, the parties, choose where our Mediators will conduct the mediation and we are comfortable conducting your mediation wherever you desire. One important consideration in choosing the site for your mediation is whether you desire a neutral site. Mediation studies show the use of a neutral site is preferable to mediating at one of the party's law offices. The Jay Daugherty Mediation Conference Center (JDMCC) has premier space with multiple conference rooms that are ideal for your mediation or arbitration. Our offices are centrally located on The Plaza in Kansas City, with convenient complimentary parking. See location, directions and contact information on this website. Why utilize mediation services? 1) High satisfaction: Studies show that a mediated resolution satisfies parties more than when a court imposes a decision on the parties. 2) Your own personally designed settlement: the parties, with the assistance of a truly neutral mediator, help create the resolution of the dispute themselves. Using a skilled mediator with a judicial background or long litigation background only enhances the mediation experience as parties have a greater sense of justice and a feeling of having had their day in court. 3) Saves money: mediation saves litigation expenses. 4) Voluntary: A third-party will not force a resolution or decision on any party. This is much different than the forced resolutions that happen at trial or in arbitration. 5) Mediation is confidential: By meeting separately with the parties by caucus, a mediator can confidentially and informally explore settlement options without traditional posturing and can consider settlement options without the parties needing to reveal their final positions. 6) Helps preserve continuing relationships: In most business situations the parties who mediate their disputes will work together again in the future. Mediation limits the animosity between the parties. This is particularly true in the construction/contractor setting, commercial business situations, contracts and all types of employment relations. Scheduling your mediation 1) Online: The most convenient way. You and your counterpart go online from the comfort of your own office. Use our online "schedule mediation" calendar tool located on this website to mutually select your date, fill out the required "Schedule Mediation" form and submit the request by email. You will receive confirmation of your scheduled mediation within one day. 2) call JDM directly for a more personal touch and one of our assistants will help you schedule your mediation: 816-931-6300 (Office). If you prefer, you may also download and complete the form, then email it to ronda@jaydaughertymediation.com. Preparing for Your Mediation Preparation is the key to a successful mediation from the standpoint of an attorney and your mediator as a successful mediation depends on both the mediator's and counsel's preparation. The parties' lack of preparation can present an insurmountable obstacle to settlement. Counsel should treat preparing for mediation as the equal of preparing for any other significant step in the case. If you want to enhance your chances of settling at the mediation, preparation is your key. 1) Prepare Your Client: If this is your client's first mediation, walk him through the process, and explain what to expect from the opening session, caucuses, and down time. Explain the nature of mediation, particularly why and how mediation is different from trial in a courtroom. Make sure that your client understands the strengths and weaknesses of the case, including the downside risks, uncertainties and costs of continuing litigation. 2) Be realistic and don't let your client get stuck in an unrealistic mode of thinking that the case is a "home run". Your client will not want to negotiate if he gets anchored to a specific result, outcome or dollar amount. Help client be flexible and open minded. 3) Encourage your client to interact with the mediator on a personal level, treating the mediator as a confidant and not an adversary the client must persuade. 4) Prepare for mediation, not trial: in mediation, attorney advocacy has to take a back seat to negotiation. Strong advocacy tends to provoke a similar response in the client and can lead to the hardening of bargaining positions. 5) Evaluate the strengths and weaknesses of your client's case objectively. What is the most likely - not potential - range of a jury verdict in the case? What conclusions is the judge most likely to make? 6) Resist the temptation to take on your client's animosity toward the adversary or adverse counsel. Keep your distance from your client's anger - it is best for your client and will benefit the mediation. 7) Exchange information if you have not done so, consider a fullexchange of non-confidential information about the case with the other side before the mediation. It is an easy way to avoid fact disputes that sometimes get in the way of serious negotiations. 8) Prepare mediation briefs for the mediator that include a timeline, the facts, the law, important discovery issues, summary judgment or dismissal suggestions in support, possible trial issues including difficult evidentiary issues, instructional issues or any other matter potentially relevant to the case and thus the mediation. This is your opportunity to have an experienced trial judge or litigator give you a sense of likely rulings on legal arguments or evidence. During the Mediation 1) Do your best to maintain an attitude that will facilitate discussion of issues and negotiations. Do not criticize the other party or lawyer, complain about their "tactics" or negotiation style, or question whether they are negotiating in good faith. 2) Be patient. Don't pursue a "cut to the chase" negotiation strategy and make your "final" offer right away. In the thousands of mediations we have handled, this strategy has never yet resulted in settlement. Why? Because the other side will not believe your offer is truly final if it comes too early in the mediation. By doing so you will either create an impasse before the parties have had time to reach the zone of potential settlement, or you will have to capitulate and continue negotiating beyond your "final" position. 3) Avoid spending time negotiating in a place beyond the likely range of settlement discussions. It tends to discourage the other side from taking you seriously, and might bring about impasse when there is still plenty of negotiating room on both sides. 4) Be honest with your client despite a natural reluctance to give your client a candid (i.e. negative) assessment of the case for fear of seeming disloyal or uncommitted. The mediator’s assessment can help the client avoid responsibility for compromising the case and their principles. Let the mediator help you bring reality to your client's perspective. 5) Do not use surprise as a negotiation tactic - it may embarrass opposing counsel and cause the lawyer and her client to react by engaging in similar tactics, which can lead to a breakdown in negotiations. The Mediation Session: What takes place? 1) All parties will be present as well as counsel. Typically an insurance representative will also be present and/or an owner or manager of a business, depending on the case type. 2) All participants meet in a joint session. After the mediator's introductory remarks and the signing of the Agreement to Mediate, the parties may proceed immediately to caucusing, or each party may make an opening statement, depending on the most productive style of mediation for the case. This will be determined prior to the mediation. 3) Caucuses: After the joint session, the mediator will meet privately with both sides in separate meetings or caucuses. In these confidential sessions the mediator discusses the case with counsel and the parties, assesses the risks of the case, considers the best and worst outcomes, the quality of the evidence, the costs of litigation and other factors. The mediator will explore possible settlements, and will likely go back and forth between the parties to explore possible settlements. 4) Written Agreement: When the parties reach a settlement, it will be reduced to writing as required by Missouri law. If the case doesn't settle? While most cases do settle at the mediation, if the case does not settle during the mediation, our Mediators will conduct follow up mediation sessions by phone until they have made all reasonable efforts to resolve the case. There will be no charge for these phone sessions unless they become extensive and the post mediation efforts result in a settlement of the case. Sometimes the parties need a second faceto face mediation session. In that event, the parties will schedule and our Mediators will conduct the added sessions like the initial face to face session. There are additional hourly charges for these supplementary face to face sessions. Confidentiality The parties recognize that mediation proceedings are settlement negotiations and that all aspects of the mediation are inadmissible in any related litigation or arbitration proceedings. Evidence that is admissible or otherwise discoverable shall not be rendered inadmissible or nondiscoverable as a result of its use in the mediation session. In the event the parties do reach a settlement, the terms of the agreement will be reduced to writing and may be admissible in any effort to enforce the settlement agreement, unless the parties agree otherwise. Any information disclosed to the mediator in private caucus shall remain confidential unless the party agrees it may be disclosed. Mediator Not Acting As Legal Counsel for Any Party All parties recognize that during the mediation session and at all other points in the proceeding: the mediator is not acting as legal counsel for or as a representative of any of the parties engaged in the mediation; the mediator has no duty to assert, analyze, inform or protect any legal right or obligation; the mediator has no duty to make an independent expert analysis or raise issues the parties do not raise; and the mediator cannot guarantee the mediation will result in a settlement.