Wednesday, February 21, 2007

Try Mediation

Don’t be reluctant to propose mediation for fear that it is a sign of weakness. The consensus of the litigators and neutrals who attended the New York State Bar Association Committee on ADR program, “Winning Through Mediation: Know When to Hold ‘Em and Know When to Fold ‘Em,” is that it is always prudent to propose mediation and should not be viewed as a sign of weakness. Attorneys can propose mediation to their adversary even before a case is filed or in the early stages of litigation by using these strategies: state that it is your “practice in every case” to discuss mediation before the case gets too deeply into litigation; include an offer to mediate in a demand letter or position statement; ask the judge or law clerk to recommend mediation.  Empirical research suggests that those making the first offer to negotiate may even strengthen their bargaining position by appearing to negotiate from a position of power and confidence.