Presenting Your Case In Mediation – Using The Fear Of Risk

           
               [Image: Screen capture from the film Carnival of Souls.]

          Thank you to Geoff Sharp for alerting me to the article by jury consultant Bob Gerchen entitled “How To Build A Mediation Presentation That Will Make An Insurance Adjuster\’s Sphincter Tighten.”
          As the title would suggest, the author focuses on the need for advocates who are adverse to insurance adjusters to approach each mediation session as a unique opportunity – and gives some great advice on how to achieve a better result.  As I read it, it occurred to me that the article had a more basic theme that could be applied as well by advocates in most mediations.  To paraphrase Mr. Gerchen, your adversary, while in mediation, cares “about one thing more than anything else in the world, even more than money.  Risk.”
          While most lawyers realize the importance of coming to a mediation session prepared to discuss the strengths of their case and the weaknesses of their opponent\’s case,  many do not focus on the fact that the mediation is not merely a “dry run” for the trial.  Mediation offers an opportunity to demonstrate why your adversary should not want to accept the risk of leaving the room without a settlement.  As Mr. Gerchen puts it, you need to ask yourself, “If I were [on the other side], what about this case would freak me out?”
          This is good reading and an important reminder that advocacy in mediation is not just another day in court.