mediation: know when to hold them + when to fold them

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MEDIATIONKnow When to Hold Them + When to Fold Them

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MEDIATIONThe New Normal

Often mandated by courts

Often mandated

by contract

Seldom a waste of

time

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ADVANTAGESof Mediation

1 Avoids costs + hassle

2 Allows principals to be heard

3 Minimizes risk + uncertainty

4 Can preserve relationships

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How Well Does Mediation Work?

Settlements ±

of the time85%

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Civil TrialThe Vanishing

Civil cases reaching trial: 1990 – 4.3%

2010 – 1.1%

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Civil TrialsCommon Pleas

1980 – 16.2%

2002 – 1.8%

2012 – 1.2% Ohio Supreme Court + American Arbitration Association

0

500

1000

1500

2000

2500

1975 1985 2000 2015

CRIMINAL

CIVIL

0

2

4

6

8

10

1975 1985 2000 2015

CRIMINAL

CIVIL

Jury Trials as Percentage of Resolved Cases, Ohio CommonPleas Courts (Gen. Div.)

Number of Jury Trials in OhioCommon Pleas Courts (Gen. Div.)

Ohio Super Lawyers Magazine, January 2017

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Trials?What Killed

Economic downturn Tort reform High costs

of litigation

E-discovery costs Mediation

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So if it is going to eventually settle

anyway…Don’t you want to solve

the problem sooner rather than later?

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How Much Money Can Be Saved?

U.S. District Ct. Nebraska (2006)

hours per case104

per case$60K

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How Much TimeCan Be Saved?

American Arbitration Association

2 monthsMEDIATION

2 yearsTRIALS

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Ohio has adopted Uniform Mediation Act Requires conflict check and full

disclosure by mediators

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What Type of Mediator Do You Want?

Facilitator = Process

(Diplomat)

Evaluator = Opinionated(Tough Love)

vs.

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BE SECUREPick a mediator

your opponent is comfortable with

Pick a place your adversary feels

comfortable with

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MEDIATIONStatements

Almost always, separate confidential communications to mediator are permitted

To other side?

To mediator only?

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“What happens in a mediation, stays in a

mediation”

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Use of Opening Joint Session

GOODAllows principals a chance to vent and understand positions of other side

NOT SO GOODCan polarize positions and increase emotion

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How Much Advocacy is Too Much?

Enough to let the other side know you are

prepared and that they should appreciate risk

Without making the opponent defensive

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Do not be afraid to concede, appreciate,

apologize, or otherwise

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presented by Tom SigmundOhio Society of CPAs Mega Tax ConferenceDecember 7-8, 2015

Dos +DON’Ts

Mediation

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DOs+ Keep an open mind+ Remember your people skills+ Be a problem solver and work

for consensus

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DON’Ts

+ Do not negotiate with the Mediator+ Do not bring a firm bottom line to

the mediation+ Do not expect to “win”

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Seeking Consensus that a Deal Makes Sense

Frequently all sides cannot

afford to “push away from the table” due to

high collective legal fees

Making parties realistically

handicap their costs and chances

of success

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Get folks back to work + return to normalcy

Litigation takes people away from the core business – a high

intangible, but very real cost

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Be a trusted ADVISOR

Manage Client Expectations

Remember that an Attorney is alsoa Counselor at Law

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Breaking the Final Impasse

Splitting the difference

Use of the “bottom-line”

Be creative

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Use of “Mediator’s Number”“4th and long” play when all else fails

Both must agree or no deal

YES NO

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What is a Fair SETTLEMENT?

“One where both sides are equally displeased”

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Documenting theSETTLEMENTSaves cost and time later

Terms come before the numbers

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When is Mediation Really Over?

Rather than declaring impasse, “sleeping on it”

may allow for greater flexibility in the coming days

Follow-up call –Anything else that Mediator can do?

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What if Mediation

FAILS?

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You can litigate with a clear conscience“You

tried…”“You had nochoice…”

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Questions?Donald W. Gregory, DirectorKegler Brown Hill + Ritterdgregory@keglerbrown.comkeglerbrown.com/gregory614-462-5416