November 21, 2022 | By: Daniel C. Fleming, V.P. & Partner, Wong Fleming, P.C., Princeton, NJ

These days, almost every lawsuit is the subject of mediation at some point. It always pays to have a roadmap for where you want to go with your mediation. Here are 10 cardinal rules to live by when your case is selected for mediation.

1. Always be prepared. Memorize the procedural history, statement of facts, causes of action and core affirmative defenses. Create an impression with the mediator that you are the source of authority in the case. This will help you establish credibility with the mediator.
2. Agree to your adversary’s choice of mediator if he/she is competent. Your goal is to persuade the mediator and if you do, his statements to the adversary will carry more weight and be more effective, if the mediator is someone your adversary picked.
3. Don’t be afraid to direct the mediator. If the mediator tells you that you have a strong case, ask him/her if they would go into the adversary’s room and say the same thing.
4. Be candid with the mediator about the weaknesses in your case but make sure you tell him/her it is not to be shared with the other side.
5. Don’t lie to the mediator about your settlement authority. If you are asked for your bottom line for that day, either say you can’t disclose that or disclose it but say it can’t be disclosed to the other side. It is better to give such information to the mediator. It will make you more credible.
6. Submit a detailed mediation statement to the mediator and share it with your adversary. Even if you don’t settle, airing out how you will prove your case will likely cause the adversary to respond and try to poke holes in your case. This essentially is a free trial run of your case without cost and you can always go back to your office and change approach/tactics if your adversary thinks of something you did not. At the very least, the mediator will try to poke holes in your case, again to your benefit.
7. Be careful about moving too far in your number during mediation at any point in time. If you don’t settle, your last number will be the new “floor” or “ceiling” in the case. Many cases settle even after a failed mediation.
8. Drop the saber rattling. This is the time to give your adversary and mediator your unvarnished view of the entire case. It is not the time to embarrass or one-up your adversary.
9. If asked by the mediator to give an opening statement, present one that is more like a dinner conversation as opposed to all the bells and whistles that come with an opening statement before a jury. You don’t want the adversary threatening to walk out. Your performance is not the issue in a mediation.
10. Never walk out. The first party to walk out of a mediation loses. Mediation is a process that does not necessarily end at the conclusion of a failed mediation.

About Daniel C. Fleming

Daniel C. Fleming is the V.P. and Partner in the firm’s Princeton, N.J. office and a litigator who has taken over 100 cases to jury verdict. He is Chair of the Banking, Finance and Bankruptcy Practice Group, the Products Liability and Mass Tort Litigation Practice Group, and the Intellectual Property Practice Group. His jury trial, bench trial, and arbitration experience are wide-ranging and include products liability, commercial disputes, employment litigation, civil rights, bankruptcy, and even international parental child abduction. Mr. Fleming received his undergraduate degree from Villanova University in 1981, where he earned a Bachelor of Arts degree in Modern Languages. He received his law degree in 1984 from Catholic University of America in Washington, D.C. and earned the American Jurisprudence Award in Constitutional Law. Upon graduation from law school, he served as Law Clerk to the Honorable Joseph M. Hannon of the Superior Court of the District of Columbia.

Mr. Fleming is a member of the New Jersey, New York, Pennsylvania, Maryland, Ohio, California and Washington, D.C. Bars and has been recognized as a Super Lawyer for his outstanding achievements as a lawyer. He is the co-author of an article appearing in the bankruptcy bar’s most notable journal, the American Bankruptcy Institute Law Review. He has donated his time to the community by speaking to Philadelphia citizens about bankruptcy at the Philadelphia Bar Association’s People’s Law School forum.

About Wong Fleming

Wong Fleming is a nationally recognized, AV-Rated law firm that represents Fortune 500 companies and other corporate clients in the areas of commercial law, corporate asset recovery, creditors’ rights and bankruptcy, employment and labor law, environmental, insurance defense and coverage, intellectual property, immigration, real estate, and premises and product liability. The firm is certified as a minority business enterprise by the National Minority Supplier Development Council (“NMSDC”) and as a woman-owned business by the Women’s Business Enterprise National Council. The firm maintains offices in the New Jersey, New York, Pennsylvania, District of Columbia, Florida, Georgia, California, Texas, Washington, Illinois, Indiana, Michigan, Tennessee, Canada, Mexico, and Germany.