A one hour lunch time presentation to general views on how to prepare for and participate in effective mediation.

1. TIPS TO HELP PREPARE FOR
MEDIATION
Presented by: Matthew W. Argue, Esq.
AMCC Construction Mediator &
Arbitrator

2. MATTHEW ARGUE’S TIPS TO HELP
PREPARE FOR MEDIATION
Overview:
One hour lunch time presentation to general views on how to prepare
for and participate in effective mediation.
Course Objective:
Attorneys will learn to better prepare for mediation and to be more
strategic during the mediation process.
Course Relevance:
High. Nearly all construction defect cases are resolved in one or two
mediation sessions.
Target Audience:
Attorneys who regularly prepare for and participate in mediation of
construction defect cases.

3. I. Selecting the Mediator
A. Does candidate have required training and / or expertise
B. What “style” of mediation is appropriate; facilitated or
evaluated
C. A good mediator needs all these attributes and more in
great abundance:
persistence, patience, impartiality, flexibility, creativity, conf
identiality, availability, good organization and
administration skills, listening and communication skills

4. CONTINUED: I. Selecting the Mediator
Matthew Argue
D. Credibility of Mediator – will the other side listen to
the mediator?
E. Is the mediator available?
F. Does the mediator follow up between mediation sessions?

5. II. How to Prepare for Mediation
A. Be sure to have relevant information at the mediation
B. Prepare organized binder of key documents, subcontract
agreements, homeowner matrices, mediation brief, and
service list
C. Provide mediator with matrix of settlement demands,
settlement offers, insurance carriers, additional insured
endorsements, claims adjusters names, phone numbers and
email addresses

6. CONTINUED: II. How to Prepare for Mediation
Matthew Argue
D. Review important documents and deposition transcripts for
persuasive information to give mediator law and facts to pressure
the other side
E. Try out different themes for the case and be prepared to share with
mediator in confidential brief and during caucuses
F. Prepare mediation brief / letter that includes relevant case
information, including number of homes or square footage of
project, location, year built, purchase or sale price, key witnesses,
legal and factual arguments, procedural history, relevant court
dates and Judge, examples of key issues or defects with
photographic or expert / testing information to support legal
position, settlement negotiations and settlement position

7. CONTINUED: II. How to Prepare for Mediation
Matthew Argue
G. Use power point, electronic photos, videos or other computer
generated presentation to persuade mediator and provide
reference material for caucus with opposing party
H. Prepare experts to present analysis and support with appropriate
and persuasive photos, documents, testing results and other
demonstrative exhibits
I. Evaluate acceptable settlement range, obtain adequate settlement
authority and prepare client / carrier for possible high and low
value of case

8. CONTINUED: II. How to Prepare for Mediation
Matthew Argue
J. Anticipate opponent’s opening demand and real “bottom
line”
K. Focus on areas of disagreement and prepare to counter
opponent’s position
L. Look for creative solutions that do not cost your client and
enhance settlement value for opponent

9. III. How to Prepare for and Utilize the
Joint Session
A. Recognize the audience is both the opponent and
the mediator
I. Convince opponent of strength of claims or defenses and
ability to persuade trial of fact of your position
II. Give mediator a factual and legal basis to pressure opponent
during separate caucus sessions
III. Evaluate strength of claims or defenses of opponent and
factor into settlement value of case

10. CONTINUED: III. How to Prepare for and Utilize the Joint Session
Matthew Argue
B. Similar to an opening statement
I. Preview the evidence
II. Review theories of liability and damages
III. Develop case themes

11. CONTINUED: III. How to Prepare for and Utilize the Joint Session
Matthew Argue
C. Use opportunity to talk directly to the client or
decision maker of opposing party
I. People rarely make settlements with those they do not respect
II. Reduce emotions and focus on common interests that can be
exploited for mutual benefit
III. Look for ways to offer solutions to weaknesses or problems
with opponent’s case (without conceding your position)
IV. Outline plan for resolution and get agreement on parameters
of settlement

12. CONTINUED: III. How to Prepare for and Utilize the Joint Session
Matthew Argue
D. Look for valuable concessions that are shared
during problem solving or brainstorming
sessions

13. IV. How to Prepare for and Utilize the
Caucuses with the Mediator
A. Carefully plan the caucus sessions
B. Use caucuses to introduce important documents and facts
to help mediator apply pressure to opponent
C. Adjust negotiation strategy to fit the case and opponent
D. Avoid too early “bottom line”

14. CONTINUED: IV. How to Prepare for and Utilize the Caucuses with
the Mediator
Matthew Argue
E. Be persistent with case themes and verify with
mediator his or her presentations of your position to
other side in separate caucuses
F. Discuss with mediator your strategy and solicit
mediator advice based on mediator discussions with
other side
G. Confirm strategy with mediator after each separate
caucus

15. CONTINUED: IV. How to Prepare for and Utilize the Caucuses with
the Mediator
Matthew Argue
H. Listen to the mediator and watch for clues about the
other side’s strategy and bottom line
I. Hold back some good information until the later
caucuses
J. Take time necessary to internally caucus before, during
and after each mediator caucus

16. V. Closing the Deal
A. Do not rush mediator to give an evaluation or target
for the case
B. Use mediator proposal to bridge final gap between
parties
C. Have mediator make proposal conditional without
communicating your commitment to the number

17. CONTINUED: V. Closing the Deal
Matthew Argue
D. Suggest alternative consideration to supplement
monetary offers
E. Suggest a Confidentiality Agreement
F. Bring settlement agreement on laptop computer to
finalize and sign at the mediation

18. VI. What Should You Expect from Your
Mediator
A. General Knowledge of Law: General Knowledge of
Insurance and Indemnity
B. Understanding of Facts
C. Ability to Listen
D. Maintain Neutrality
E. Administrative Skills

19. CONTINUED: VI. What Should You Expect from Your Mediator
Matthew Argue
F. Mediation Skills
G. Ingenuity
H. Experience / Evaluation – only at the appropriate time
I. Confidentiality

20. VII. What Mediator Should Expect
from the Parties
A. Preparation of all parties
B. Professionalism and Courtesy
C. Candor
D. Willingness – willing to compromise, willing to
resolve outside of traditional litigation mode
E. Inventiveness

21. VIII. Reasons Why Mediation Fails
A. Parties fail to cooperate and engage in necessary
mediation preparation activity (e.g., exchange of
documents, exchange of expert information, specific
defect list and reasonable COR)
B. Mediator has not been properly prepared
C. Mediator fails to manage the expectations
of the parties

22. CONTINUED: VIII. Reasons Why Mediation Fails
Matthew Argue
D. The parties and mediator fail to arrange for
authorized representatives to attend the mediation
E. Fail to develop the momentum and confidence
necessary to settle the dispute
F. Fail to utilize shuttle diplomacy to impart timely
flow of needed information

23. CONTINUED: VIII. Reasons Why Mediation Fails
Matthew Argue
G. Failure to impart flow of new information, recent
case law, and additional facts and documents to
encourage parties to think about settlement
H. Mediator fails to follow up and persistently pursue
settlement opportunities following initial impasse
I. Mediator fails to utilize proper facilitating and / or
evaluative techniques