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How to Weaponize your Mediator

As I always point out in my opening statement at mediation, “I have no dog in the hunt” though I have a deep personal pride in trying to work out differences.

When addressing all parties and counsel, I believe it is critical to put on a neutral, non-judgmental appearance. Does that mean that I don’t have an opinion as to which direction the case should move? No, of course not. When we split into caucus, however, it becomes my job to point out the weaknesses and strengths of each case to encourage movement to a more compromising ground. After all, if you take a position that is intransigent, you need to be in a courtroom not mediation. And, once on trial, you have lost all control over the process.

I invariably include the following language in my Letter of Confirmation:

I invite each of you to provide me with a memorandum of law or fact on any salient issues. Please make any submission to the other side, or make it clear to me that the submission is confidential.

This is invaluable for me in developing a strategy in conducting the hearing.  For example, do I separate the parties into caucus before opening statements due to inflammatory feelings, can I point out certain precedents or factual issues that can be persuasive, do I accentuate or play down certain items that could be embarrassing? These are just to name a few of many, many possibilities.

The bottom line: Turn me into an arrow in your quiver to help resolve your case.

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