Christian & Small Partner Kenneth O. Simon was recently featured as one of 14 contributors to the “Perspectives on Mediation from Top Attorneys” article in the November 2014 issue of The Alabama Lawyer, an Alabama State Bar publication.
- What is the key to your success in mediation?
Simon: “From a mediator’s perspective, I experience the most success when I propose a specific figure to settle the case. Yet, out of respect for the parties’ right to self-determination, I suggest a specific figure only under the right circumstances. I don’t make a mediator’s proposal unless the parties are bogged down and look to me for leadership and direction. I formulate the proposal only after evaluating the facts, strengths and weaknesses of the case, gauging the respective attitudes of the parties regarding settlement generally and anticipating their likely responses to the proposed figure.”
- At what point in a case is mediation appropriate, and when do you encourage or discourage it?
Simon: “Experience shows that mediation has the greatest chance of success after discovery is complete and the key motions have been decided. Moreover, there are earlier points in the case when mediation should be encouraged, such as before significant attorney fees and expenses are incurred. Empirical research shows that in certain situations the uncertainty created by pending dispositive motions can have a salutary effect on settlement discussions. Nonetheless, mediation seems to have a much lower chance of success when it is the result of a mandatory court order, when the parties are waiting for key rulings and before they have sufficient information to properly evaluate the case.”
- How do you prepare a client for a mediation session?
Simon: “Clients are best prepared for mediation when they have a realistic picture of all sides’ positions, a clear-eyed assessment of the rigors and uncertainties of trial and an informed view of likely outcomes. Clients need to be aware of the economic costs already incurred and likely to be incurred in the future. They should understand how the negotiation process works, what is and isn’t achievable and the need for flexibility throughout the settlement process. Clients also benefit enormously from discussions regarding settlement goals, strategy and tactics, and how success should be defined at the conclusion of the process.”
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