You have decided that mediation would be appropriate for your case. You have chosen the mediator best suited for the facts of your case. You have done the necessary discovery to evaluate the case. What are the keys to having a successful mediation at this point?

To have a successful mediation, the decision makers must be present at the mediation. From the plaintiff's perspective this means that the family member(s), usually the guardian ad litem, who will be responsible for settling the case should attend. From the defense perspective, there should be an adjuster , with full authority to settle the case, at the mediation. If any portion of the settlement is to be self-funded by the nursing home, a representative of the nursing home, with full authority to commit the nursing home's resources, must be present. It should be determined before the mediation commences, that these decision makers will be attending. If there is any doubt about this many mediators will contact the attorneys for each side prior to the mediation to make sure these indispensable parties will be at the bargaining table.

Mediation briefs should be exchanged well in advance of the mediation. From the plaintiff's perspective, the brief, along with an opening demand (if one has not been conveyed already) should be given to the opposing side and the mediator at least two weeks before the mediation. The briefs should be exchanged well in advance of the mediation so that each side has appropriate time to digest the information and seek appropriate settlement authority. This is especially true from the defense perspective since these matters are generally heard before a committee to obtain settlement authority well before the mediation. If the defense is hearing your demand for the first time at the mediation itself, this will often times result in the necessity for a second mediation.

Your mediation brief should contain an appropriate demand. Demands tend to fall into one of three zones. They either fall within the potential zone of agreement; within a credible zone; or within an insult zone. A great deal of thought should go into the opening demand. It is extremely important because it influences parties' expectations. The party making the initial demand therefore obtains a certain advantage over the other side to the extent that he does influence their expectations.

Initial demands that fall into the insult zone are generally not helpful. Such demands generally invite and equally insulting response. Often times this however is where the parties start. No serious settlement discussions start until the parties have each made offers within a credible range.

The credible range is that range within which a party might be able to look you in the eyes and say with a straight face that the trier of fact could come in with a verdict in this range. Once each side has reached this position, then meaningful settlement negotiation can begin. It is only then that the parties can start exchanging demands and offers within the actual zone of agreement of the parties.

No matter what zone the negotiations begin in the following can generally be said. The party making the extreme offer or demand must be more conciliatory in his follow up demands. In other words, if the opening demand is extremely high, that party will have to be softer and make bigger concessions before meaningful discussions can take place. This ,of course, may be construed by the opposing side as weakness. Therefore, one might consider making the initial demand more with in the credible zone. Subsequent concessions can than be smaller or more firm, suggesting more belief in the strength of one's case.

The contents of the brief should include the operative facts in a way that the mediator can readily understand the case and the attendant legal issues. Brief synopsis of the special damages should also be included. Finally, there should be a brief discussion of any prior settlement discussions. If there are matters which you wish to confidentially express to the mediator , these can be sent in a separate letter or brief. If a party perceives any special barriers to settlement, these can also be discussed privately with the mediator well before the mediation commences.

To be successful at mediation you should realistically know your alternatives if the case goes to trial. In other words, one must have a strong belief based on research, the facts of this case, the weaknesses of the case, what the potential jury verdict range is and what the likelihood of obtaining a successful verdict. If you don't have clarity with respect to this issue, you are really entering the negotiation like a rudderless ship. You have to have some objective range of where you want to end up, before coming to the bargaining table. In making this analysis, one not only has to consider the facts of the cases, but the credibility of the witnesses, whether there are logistical problems which would interfere with the trial (such as witness availability etc.).

Once briefs have been exchanged and you have analyzed the likely verdict range and other issues surrounding the case which will affect the outcome,, and you know your range of acceptability, it is time to begin bargaining.

Successful bargaining requires good listening skills. One should not only be attentive to the positions being advance by the other side, but should be listening to determine what needs or interests the other party has. It is often said that cases are settled based on interests or needs, not positions. In the nursing home setting, the family often has many unexpressed interests in pursing the case. Often times, the family wants and needs some expression from the nursing home that they are sorry for what happened to their loved one. The family may need assurances, backed up by facts, that policies and practices have changed so that this type of problem does not surface again. Understanding the other sides unspoken needs is often the key to a successful mediation. Therefore, quell your desire to talk, suspend judgment while the other side is speaking, and really listen for what is most important to the speaker.

During the negotiations it is important to know whether there are any external influences that may be affecting negotiations. Is the defendant trying to defend some company policy? What are the finances of the company? Is there a desire to avoid publicity? Are there ongoing governmental investigations? Does one of the parties want to set some type of precedent in the case? If these external matters are never uncovered in the mediation, the mediation may well fail and the parties will have no idea why.

Know what type of bargaining strategy is being used by the other side. Is the other side bargaining competitively or cooperatively? A competitive bargainer s makes few concessions, small movements, and sees the mediation from a win/loose perspective. The cooperative bargaining is willing to listen, to make reasonable concessions, to look at interests as well as positions. The subject of competitive bargaining versus cooperative bargaining can take up books. Needless to say one doesn't want to be a cooperative bargainer when dealing with a competitive one. In other words, you have to look at the bargaining style of the other side and respond accordingly.