In the appropriate case, a moot mediation is the best way to prepare for a mediation and to obtain the most favorable result. Usually, one should only consider the use of a moot mediation in a large exposure case that justifies the expense of hiring an experienced mediator to conduct a ‘practice’ mediation.
If you decide to do a moot mediation, you will need to have someone in your firm represent the opposing party. You can keep the costs down to some extent by providing the mediator with pleadings or letters that set forth the positions of the parties as opposed to writing a mediation brief for both sides, although doing so would be a valuable exercise in understanding the opposing party’s case. At a minimum, I suggest writing your mediation brief and seeking comments on it from the moot mediator. The moot mediation will not proceed in the traditional offer and counter offer routine, but is better with a joint session where the positions of the parties are presented and the mediator can ask questions and play devil’s advocate with each side.
An experienced mediator will tell you when an argument or issue is strong or weak and will suggest better arguments and points that you may not have considered. You can also discuss the type of mediator that you want to actually mediate the case (judge or lawyer, type of expertise, personality and approach), as well as the settlement ranges and get the mediator’s reaction to the numbers. This is an invaluable exercise in terms of your preparation and for preparation of your client.
I recently conducted a moot mediation in a legal malpractice, breach of fiduciary duty claim against a large national law firm. It was a very productive exercise which ultimately led to a mediated result in the range discussed at the mediation. After reading about the case in preparation for the moot mediation and listening to counsel, I was able to point out possible ethical violations that had not been considered and which were then incorporated into the mediation brief. I was also able to provide counsel with my views as to the type of background and experience that they should look for in a mediator. They found a mediator with that background and settled the case in the range that we had discussed in the moot mediation.
So, next time you have a case that you think justifies the expense of a moot mediation, consider doing one. It will pay you back many times over in the actual mediation and the ultimate result.
Bruce A. Friedman is a mediator with a national practice. With years of litigation experience behind him, he understands the goals of the mediation process and will do his best to ensure that the needs of both parties are met, justly and efficiently. For more information on the mediation services that Bruce A. Friedman provides, check out his website at http://www.FriedmanMediation.com, his profile at ADRServices.org, or call him at (310) 201-0010.