Table of Contents
Introduction 15
1 Preparing Your Client 17
2 Explain the "Game" to Your Client 20
3 Who Should Participate in Mediation? 22
4 It's Never Too Late to Mediate 24
5 What Should I Include in My Pre-mediation Statement? 27
6 Pre-mediation Telephone Calls with the Mediator Are Almost Always a Good Idea 31
7 Make Sure the Mediator Knows the Audience 33
8 Tell the Mediator What You Need 34
9 Pre-mediation Statements: To Share or Not to Share 36
10 Alternatives to Mediation and Arbitration 39
11 Self-Serving Bias 41
12 Reactive Devaluation 44
13 Endowment Effect 46
14 Joint Sessions at the Beginning of a Mediation 49
15 The First Private Caucus with the Mediator 52
16 Some of the Most Important Work in a Mediation Is Done while the Mediator Is Outside the Room 54
17 Most Offers are a Response to the Last Offer 56
18 Judge Rosen's "Four Cs" of a Successful Mediation 58
19 Lessons from the Middle East 61
20 Pragmatism over Principle 64
21 Risk: It's More Important than Facts 68
22 It Pays to Be Nice 71
23 Focus on Interests 74
24 Mediation While a Dispositive Motion Is Pending 77
25 The First Offer Matters 79
26 Let Your Clients Talk 81
27 Bidding Against Yourself: The Rejection and Retreat Technique 83
28 Put the Cart before the Horse: Should We Start with a Settlement Agreement? 85
29 Riskin's Grid: Do You Need a Facilitator or an Evaluator? 88
30 "Riskin's Grid": How Broad Is the Problem? 91
31 Timing Is Everything 94
32 Don't Introduce Incendiary Settlement Terms 96
33 How Important Is the Mediation to Your Client? 98
34 Brainstorm with Your Mediator 101
35 The "Bottom Line" Is Likely to Change 103
36 Don't Back Your Opponent into a Corner 105
37 Its Healthy to Let Go 108
38 What Happens If I Don't Settle? 111
39 You Can Agree to Disagree and Still Settle Your Case 113
40 It's Okay to Say Yes 115
41 Mediator's Proposals 117
42 Can I Lie to My Mediator about My Bottom Line? 120
43 You Should Always Leave a Mediation Disappointed 123
44 Don't Aim for Perfection 125
45 Should We Tie Up the Loose Ends with Arbitration? 127
46 A Reasoned Mediator's Proposal 129
47 The Impact of a Pandemic on Mediation 131
48 Let's Talk about Brackets 135
49 Consider a "Structured Mediation" 138
50 Great Negotiators Know When to Fold 141
51 You're Not the Only One Who's Glad the Case Settled 144
Epilogue: So, You Want to Be a Mediator? 147
Acknowledgments 159
Notes 163
