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Your Holiday Gift: Stress-free Mediation.

December 24, 2012

It is the time of year for many to consider gifts to others.  Knowing well how stressful litigation can be, I want you to remember the gift of non-stress that is given litigators by mediation, all year-long.

Litigation, and the easily available use of a judiciary to resolve any dispute,  overtly encourages litigators to try to control the actions of others.  Some attorneys will always take this to the highest level, with or without direction from their clients.  And, because even simple litigation administration requires some cooperation of your opposition, again, even this indirect control by your opposition can also lead to stress.

This excessive control issue and the stress it directly causes is also at least one reason for the steady decline in job satisfaction by many litigators.

In mediation,  a totally voluntary, consensual process, no litigator, nor anyone else, can control YOUR side of the mediation process.

And, yet, forgetting this truism, too much time is still often unnecessarily expended by some in one side trying to control the other side in mediation.  Worse, in thinking that their control is necessary for their success.

Thus, my gift, this reminder:   Mediation can be used as a total respite from the other control-stress arising from your litigation.

You should remember that you can be totally and wildly successful at mediation using processes that you, alone, can control. And, when you can control things, alone, your stress level declines, precipitously.

No judge or any opponent can force anything upon you or your client once your mediator is selected and your mediation scheduled.  You need nothing from or of your opponent to maximize your own successful use of the mediation process.

You need no cooperation from your opposition to be prepared.  And, this single preparation factor, alone, may be as important to your client’s success as anything you do.  Often simply appearing prepared as you begin your mediation is literally worth real additional dollars to your client.

Your client will be more than happy to totally cooperate with you for their pre-mediation preparation.  Clients love anything that expedite the end of their litigation.  And, they love a personal, one-on-one conference with their own counsel to bring them to date on the progress of their claims or defenses.

You need no assistance from your opposition to appropriately pre-evaluate your likely outcome at trial should your mediation be unsuccessful.  And, confidence is knowing this future likely outcome is critical to any mediation success.  And, so totally in your control.

The mail, snail or even email, unlike the telephone, requires no one to answer.  Or, return your call.   Accordingly, sending detailed and necessary information to your opposition to allow them to also prepare for your mediation is also totally within your control, alone.  And, invariably their preparation also leads directly to greater success for your client.

Your timely, or even early, appearance at your mediation is easy to accomplish by you alone.

Your dress and demeanor at mediation requires no advance consultation with your opposition.  But, how you initially (and unilaterally) decide to approach your opposition, both in dress and demeanor during your mediation, will set the tone of your entire mediation.

Your opening statement, if used at all, is solely a creature of your sole decision.  Although it is always best to consider the input of your clients and even your mediator, in the end, it is your exclusive choice.

Likewise is your decision of what to share and when to share the information that you, solely, decide is in your client’s best interest during the mediation.  And, during your self-directed negotiations!

Having a negotiation plan is also totally unilateral.  Despite what is commonly mouthed at mediation, your beginning, your movements in negotiation, your timing of your negotiation, and your final positions, never really depend upon your opposition.  In fact, the stress of mediation would be dramatically lessened if in responding to an unacceptable proposal from the opposition, you did not know the specifics of the proposal, only that it was insufficient!  (I am still working on how to encourage such a stress-free technique to most attorneys.)

Even offering any proposal or accepting any proposal, although the final choice of your client, is ultimately made with your input and recommendations.  No permission is required of your opponent.

And, although, resolution will require some assistance from your opposition in ultimately accepting your final position, history has shown that your unilateral efforts will almost always be reciprocated.  After all, your opposition party wants resolution as well!  And, the more reasonable your unilateral effort, the more likely the same will be returned.

More importantly, you have the ability, unilaterally, to set goals, other than only resolution, that are totally for the benefit of your client, even if the oppositions use of their mediation opportunities is squandered.

Admittedly, once a resolution is reached in concept, the process will require some cooperation with your opposition on the details of administration of the resolution.  But, by that time your opposition will be happy to cooperate!  And, even if seemingly not, you can rest well with this last, small stress, knowing that another file untimely will be closed, another happy client is had, and some of your bills can now be paid.

And, best of all, you did it with no need of the cooperation of your opposition.  You are in total control of this process that provides so much success (and income).

My holiday gift to you; use it in good health!

Happy Holidays 2012 and Happy New Year,  2013!  Dan

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