MEDIATION“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.” - Jay Daugherty, Founder
“Mediation” is a process in which a neutral third party facilitates Alternative Dispute Resolution (ADR) communications 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.
Collectively, our Mediators have conducted thousands of mediations handling the Kansas City region’s and the nation’s biggest and most complex cases. Most of our Mediators served as a Circuit Judges and/or Appellate Court judges for decades. All of our Mediators bring a sense of judicial neutrality as well as a lifetime of litigation experience and a long history in the practice of mediation and arbitration.
Their skills are grounded in judicial careers and/or long litigation legal careers at major law firms where they have presided over hundreds of jury trials and/or tried complex jury 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 Rule 17, the primary rule in Missouri that guides the usage of ADR mechanisms.
The professionals at JDM 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 Multiparty Business Cases
Condemnation and Insurance Coverage/Bad Faith Claims
The billing rate for all of our Mediators ranges from $425 to $470 per hour for preparation and conducting most mediations. However, the rate for class action/multiparty cases if the mediation involves four or more parties ranges from $495 to $560 per hour.
If the matter does not settle as a result of the mediation, our Mediators will continue to mediate the case by phone/email 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 spent results in a settlement.
For mediations requiring travel outside of the Kansas City metropolitan area, any travel time is billed at half 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. We are comfortable conducting your mediation wherever you desire. One important consideration in choosing the location for your mediation is whether you desire a neutral site. Mediation studies show the use of a neutral site is preferable.
The Jay Daugherty Mediation Conference Center (JDMCC) has over a dozen conference rooms that are ideal for your mediation or arbitration. Our offices are centrally located on renowned Country Club Plaza in Kansas City, with convenient complimentary parking and shops, hotels and restaurants nearby. See location, directions and contact information on this website.
Why utilize mediation services?
Studies show that a mediated resolution satisfies parties more than when a court imposes a decision on the parties.
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.
Mediation saves litigation expenses.
A third party will not force a resolution or decision on any party. This is much different from the forced resolutions that happen at trial or in arbitration.
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.
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
Online is the most convenient way. You and your counterpart can 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.
Call JDM directly for a more personal touch, and one of our assistants will help you schedule your mediation: (816) 931-6300. If you prefer, you may also download and complete the form, then email it to email@example.com.
Preparing for your mediation
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.
Prepare your client
If this is your client’s first mediation, walk them 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.
Encourage your client to interact with the Mediator
Your client should treat the Mediator as a confidant and not an adversary they must persuade.
Evaluate the case objectively
View 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?
If you have not done so, consider a full exchange 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.
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 they get anchored to a specific result, outcome or dollar amount. Help the client be flexible and open-minded.
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.
Do not 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.
Prepare mediation briefs for the Mediator
The briefs should 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 to 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
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.
Don’t pursue a “cut to the chase” negotiation strategy and make your “final” offer right away. In the thousands and 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.
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.
Continue to be realistic
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 it might bring about an impasse when there is still plenty of negotiating room on both sides.
Prepare your client
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.
The mediation session
All participants meet in a joint session. 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.
After the Mediator’s introductory remarks and the signing of the Mediation Agreement, 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.
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, and 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.
When the parties reach a settlement, it will be outlined in a written agreement, as required by Missouri law.
If the case does not 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/email until they have made all reasonable efforts to resolve the case. There will be no charge for these follow-up sessions unless they become extensive and the post-mediation efforts result in a settlement of the case. Sometimes the parties need a second face-to-face mediation session.
In that event, the parties will schedule the added sessions, and our Mediators will conduct them like the initial face-to-face session. There are additional hourly charges for these supplementary face-to-face sessions.
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 non-discoverable 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 court 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 does not act 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.
Schedule Your Appointment
To reserve an appointment online, please click your preferred available date. Our staff will contact you on receipt of your Appointment Request form.
Disclaimer: This website is not a solicitation for business. All content on the JDM website is intended to provide general information about JDM and an opportunity for interested persons to contact JDM. The content of this website is not offered as legal advice or legal opinion and it should not be relied upon for any specific situation. JDM Mediators, Arbitrators, and Masters are not engaged in the practice of law and no attorney client relationship is intended. This website is for informational purposes only and does not constitute a complete description of JDM's services. While JDM endeavors to keep the information updated and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, or reliability of the information contained in this website.