II. Some Differences Between Trial Advocacy and Mediation Argument: Trial pleading requires a special set of skills, particularly in preparation, legal research, and presenting your client`s perspective on the facts and application of the law. The litigator will put forward compelling reasons why the Trier should allow his client to prevail over his opponent, whom he hopes and intends will be the follower of the lot. The outcome of the trial is based, in part, on (1) the relative rights of the parties (based on facts and precedents) as determined by the Facts Chamber, and (2) the relative power (financial resources) of the parties to conduct the dispute. Your goal throughout the litigation process is to enthusiastically represent your client`s position and control the process to your advantage. But the real outcome of the dispute is imposed by a bailiff or jury with superior authority. A key difference between litigation and mediation is that mediation is a process that will not lead to a clear victory for one party and a defeat for the other. Litigation is a losing ploy with a high degree of risk and uncertainty. Mediation attempts to achieve a winning outcome, with the goal of achieving certainty by concluding the dispute under the terms of a mutually acceptable agreement. While the judge or jury imposes the result on the litigants even against their will, the outcome of the mediation dispute is entirely within the control of the litigants. Some of the reasons why mediation is so successful are: A. Three strategic areas of negotiation: 1.
Interests: Parties seek to identify each other`s underlying needs, desires and concerns and find ways to balance them when creating a common concern, priority and preference required for an inclusive or mutually beneficial agreement that creates value for the parties. Taking into account the interests of both parties can lead to a successful resolution of the conflict. This is called integrative negotiation. 2. Rights: The parties seek to determine how the dispute can be resolved by applying a standard of equity, contract or applicable law. Slavishly clinging to an outcome based on legal rights leads to a distribution agreement B where there is a winner and a loser, or a compromise that does not realize potential integrative gains. Each party believes that its rights take precedence over those of the others. 3. Power: Parties try to force each other to make concessions that no one else would make. Also leads to distributed agreements and can potentially lead to revenge, non-compliance or the creation of future litigation.
The threat of the use of power, strikes, lockouts, massive discoveries usually lead to similar reactions that can spiral out of control. The use of power should only be a last resort. B.Do do you want the mediator to value your case?: Does your case require a detailed analysis of the evidence, the law and the likely outcome of the trial? Your strategic direction will be shaped by understanding your opponent`s negotiating direction. If your opponent is focused strictly on an outcome based on rights and power, you may need a mediator who is willing to give an opinion on the merits and value of the case. When the defence is offered by an insurance lawyer, an assessment of the merits and likely outcome of the trial is usually required. If it is obvious that your client or the other party would benefit from a strong feeling of having their day in court, you want the mediator to conduct the proceedings as a mini-trial and even hear witnesses in joint sessions or in private sessions. However, be careful when requesting or requiring the mediator to provide an assessment or opinion on the monetary value of the case. You can get your wish!! This carries a high level of risk and can impact settlement options. If both parties request an assessment by the mediator, it is strategically preferable for the mediator to provide a set of values than a specific number. The party who is not satisfied with the assessment will not have confidence in the mediator, which reduces his or her ability to facilitate an acceptable solution. The winner may find himself in an embarrassing dilemma: if he does not take into account the number proposed by the mediator, he will be considered weak or have no confidence in his ability to plead the case. Therefore, an assessment by the mediator that a party does not agree to may prevent the resolution of a case that could have been settled and lead the parties to plead the outcome.
Threats used hinder uncooperative dominance The competitive approach to negotiations is focused on the art of play, with the main aim of surpassing or outsmarting the opponent. They have a keen interest in tactical or strategic considerations, suggesting that they orchestrate the case for the best impact. Instead of seeking an outcome that is fair to both sides, they want to outperform the other side; to win a clear victory! The negotiator is often perceived as primarily interested in increasing fees rather than maintaining relationships and being reasonable. The negotiator doesn`t care about the co-op`s goal of achieving a fair outcome. Competition views negotiations as a poker game – you put the best ahead of your case and try to make the other guy believe that his weaknesses are bigger than he really should be watching. Co-ops believe that cases should be evaluated objectively and on their merits and that both parties should try to find the fairest outcome. Competitors see their work as a game in which they try to outsmart and outdo the other side. Despite their differences, both are considered very effective: NEGOTIATIONS, contracts The consultation that takes place between the parties concerns a draft agreement. 2.
What emerges from the negotiations shall only form part of the agreement if it is incorporated into the agreement. As a general rule, no evidence can be provided to add, reduce, contradict or modify a written document. 1 Dall. 426; 4 Dall. 340; 3 pp. and R. 609; 7 p. and R.
114. Unfortunately, most people are not born negotiators. The good news is that research consistently shows that most people can greatly improve their negotiation skills through education, preparation, and practice.