This morning, we continued with our in-firm Litigation Strategy Series. Tom Macmillan presented the second part of his seminar on mediations. Tom provided a lot of practical advice, including:
- In opening statements, be yourself and be brief. Also, consider leaving certain concepts to be explained later by the mediator as some things can be more persuasive coming from the mediator.
- Avoid using overly technical jargon that could cause a party to tune out.
- Try not to turn off the other side. For example, instead of saying “you lied under oath at your discovery”, state “the jury is going to hear that you were not forthright…”.
- During a caucus, always be ready with a recommendation for your client on the next offer.
- The mediator can provide a lot of useful information throughout the day, such as the temperature in the other rooms, the level of optimism, and who is calling the shots.
- If things are not going well at the mediation, it is a good opportunity to speak with your client about ongoing file handling strategy.