I. Introduction

The litigated case wends its way slowly through the court system,

once the complaint is filed. Typically, the defendant’s counsel will file

motions seeking dismissal of the complaint. Such motions are usually

denied by the court. Following the court’s order, discovery proceeds and

depositions are taken, at which attorneys are often openly hostile to each

other.

At the conclusion of discovery, it is the accepted practice for one or

more of the parties to file summary judgment motions, which the court

typically denies because of the fact-based nature of the dispute—leading

to the setting of a trial date and eventually trial, if the case is not settled.

This process is expensive and time-consuming, causing some clients to

complain, “The lawyer made out better than I did.”

Success in the court room or at arbitration is dependent upon an

attorney’s advocacy skills and not on the ability to negotiate. Yet this

skill, which until recently was not taught in law school and is not easily

learned through the practice of law, is central to successful representation

of a client at a mediation. Having participated in many mediations, both

as a mediator and as counsel for one of the parties, I have observed, all

too frequently, the unequal negotiation skills of the parties’ counsel. In

my experience, attorneys with sharply honed negotiation skills invariably

achieve the best results for their clients.

How can the client obtain the best result at a mediation? The premise

of this chapter is that parties to a substantial dispute that lends itself to a