I recently bought an amazing 2-CD release by sports psychologist Kevin Elko entitled Win On Purpose. A longtime consultant to Nick Saban and numerous other college and professional football coaches, Elko is renowned for his success in teaching and motivating athletes to reach their highest potential.
Elko’s presentation inspired me to consider how litigators in mediation can Win On Purpose. First, as an attorney, you should set goals and develop plans for every mediation you participate-in. Your goals should be realistic, optimistic, and designed to maximize recovery — or results — for your client.
Since roughly 95% of all cases filed in court are resolved through mediation (or negotiation), one of your goals should be to best prepare each case for that period of negotiation (or mediation) where the case will, in all likelihood, settle. Your preparation may not look much different from preparing your case for trial.
However, I believe there are differences in preparing a case for trial versus mediation — and here is my advice for Winning Mediations On Purpose
Be more forthcoming with your information.
In preparing a case for mediation, your goal should be to give your opposition enough information for him or her to understand and appreciate the risk of proceeding to trial, versus settling your case. Which, of course, is practically the opposite of preparing a case for court — where you typically want to hold back information, and surprise the opposition during trial.
From the vantage point of a mediator, preparing your case for mediation means having all records you wish to be considered by the other side (medical, business or other) organized, and presented in a fashion that enables your opposition to quickly & clearly understand both your argument and the strength of your position.
It can make a significant difference in the outcome.
I routinely see attorneys approach mediation with scant preparation and/or forethought given to how the other side will perceive their case. What’s more, I’ve seen this lack of preparation directly reflected in settlement results.
“Winning on purpose” necessitates better preparation and more thought as to how your case will be viewed by the other side.
Surprises rarely work in mediations.
You may remember a previous post I wrote recommending that attorneys in mediation share their position statements. It’s one of many ways to influence your opposition’s view of your case. Another way is to make sure that your opposition has all the information they should consider well before the day of a mediation. In my experience, it’s rarely effective springing information and arguments on the opposition at mediations — and yet, I see it done all the time.
If your goal is to “win on purpose” I would encourage you to figure out what that looks like for each case, and then determine what you need to do to prepare that case for mediation to help you accomplish your goals.