4 Sure Fire Ways to Torpedo Your Mediation
November 1, 2021

For Successful Mediation, Avoid These Four Negotiation No-Nos

If you’re going to spend the time and the money to go to mediation, you may as well make it worth your while. To make it worth your while, it’s best to avoid these 4 negotiation faux paus. 


1. Don’t Prepare.


With full recognition of the constraints of client resources, it is important to figure out some way to adequately prepare for mediation prior to mediation day. What is the bare minimum preparation needed for a mediation that is worth your while?


  • Make a list of all the pending claims, counterclaims, and crossclaims;
  • Review the pattern jury instructions for each pending claim on the list;
  • Consider how the facts of this case line up with the pattern jury instructions for each pending claim;
  • Calculate your client’s best possible outcome at trial and communicate this to your client; and
  • Calculate your client’s worst possible outcome at trial and communicate this to your client.
  • Review your notes about any prior settlement offers.


2. Demand Better Than Your Best Day.


After you have prepared for mediation day, do not start things off on the wrong foot by communicating an opening offer that exceeds your client’s best possible outcome at trial. Not only will this not get you anywhere, but it will also set you back in terms of time, cost, and credibility. At best, it will cost you time and money as the mediator works extra hard to get the other side to come back to the negotiation table. At worst, it will torpedo the entire mediation and end in a premature impasse.


3. Go Backward.


If you have done the minimum preparation in #1, then you will know the benchmarks you and the other counsel have set through any prior settlement offers. Do not make an opening offer at mediation that is less than a relatively recent pre-mediation settlement offer unless you are prepared to also provide a compelling reason (ie: protracted discovery expenses between offers) as to why you are backtracking. Otherwise, this is a sure fire way to offend the other side and torpedo the mediation quickly. 

4. Don’t Listen.


If either side refuses to listen, then the mediation will stall out and likely tank. Across the nation, patience is wearing thin. People are quick to interrupt each other and the occasional Zoom lag certainly does not help. It is understandable that your client believes strongly in their narrative and they need to know you, as their lawyer have their back. But what is the harm, in private session in mediation, of considering (without even conceding), that the other side might have 1 or 2 good facts or legal arguments? After all, listening might help you to learn what is important to the other side, which might be the key to unlock a resolution you could easily live with.  


If you’re looking for an experienced mediator in the Winston-Salem area, contact Colleen Byers Mediation today.  

Amendments to the North Carolina Mediation Rules Effective January 6, 2025

By Colleen Byers • January 8, 2025
What Attorneys and Mediators Need to Know On December 11, 2024, the North Carolina Supreme Court approved a series of important amendments to the Mediation Rules and Standards of Professional Conduct for Mediators. Effective on January 6, 2025, these changes impact key aspects of mediation practice in North Carolina.  Below is a summary of some (although not all) of the recent amendments to the Standards of Professional Conduct for Mediators, and the Mediation Rules governing settlement procedures in Superior Court, Family Financial, and Clerk of Court matters. For comprehensive redlines to each rule set, visit https://www.nccourts.gov/news/tag/general-news/supreme-court-amends-mediation-rule-sets Superior Court Mediation Amendments New Mediator Designation Forms See Rule 2(a) & (b) There are now two separate forms for mediator assignment, depending on whether the mediator is party selected or court appointed. One form entitled Designation of Mediator By Agreement of Parties in Superior Court Action and Order of Appointment (AOC-CV-812) is for parties to designate a mediator of their choice, while the other form entitled Appointment of Mediator by Court Order in Superior Court Civil Action (AOC-CV-840) is for requesting a court-appointed mediator or for court staff to file a mediator appointment where the parties have been unable to agree on the selection of a particular mediator. It is important to note that in order for any of the parties to designate a mediator of their choice, all parties, including but not limited to unrepresented parties, must agree to designate said mediator. If all parties have not expressed agreement to designate a particular mediator, then the parties and/or their counsel must use AOC-CV-840 to ask the court to select a mediator. Attorney Signatures Removed from Mediated Settlement Agreement See Rule 4(c) & Rule 10(c)(9)(b) The requirement for attorneys to sign the final settlement agreement, alongside their clients, has been removed. Updates to the form Mediated Settlement Agreement (AOC-DRC-15 and AOC-DRC-16) are anticipated so be sure to use the most up to date forms in your mediations. Party Designee Signature See Rule 4(c)(4) A clarification was made regarding the ability of a designee to sign on a party's behalf if the party does not attend the conference in person . A designee may sign the agreement on behalf of a party only if the party does not attend the mediated settlement conference in person and the party provides the mediator with a written verification that the designee is authorized to sign the agreement on the party’s behalf. The Dispute Resolution Commission’s Advisory Opinion AO 42 provides mediators with further guidance when a designee wishes to sign for a party who does not attend the mediation in person. Substitution of Mediator See Rule 7(c) The form used to request mediator substitution by mutual consent of all parties has now been linked directly to Rule 7(c) (AOC-CV-836). This makes the substitution process more efficient and standardized. Family Financial Mediation Amendments New Mediator Designation Forms See Rule 2(a) & (b) Just like the Superior Court Civil Actions, the process for assigning mediators in family financial cases has been updated with two new forms. One form (AOC-CV-825) allows for party-selected mediators, and the other (AOC-CV-841) is used to request a court-appointed mediator. Substitution of Mediator See Rule 7(c) The same update regarding mediator substitution applies here as in the other rules, with the relevant form (AOC-CV-836) linked directly to this rule. Clerk of Court Mediation Amendments New Mediator Designation Forms See Rule 2(a) & (b) Similarly to the other updates, the process for assigning mediators in matters before the Clerk of Superior Court has been divided into two forms. One form (AOC-G-302) is used for party-selected mediators, while the other (AOC-G-314) is used to request court-appointed mediators. Attorney Signature Removal See Rule 4(b) As in the other rules, the requirement for attorneys to sign the final agreement with their client has been removed from Rule 4(b). Mediator Confidentiality Amendment Exception to Confidentiality See Standard 3(d)(2) This amendment creates an important exception to the general rule of confidentiality in mediation. Specifically, it allows a mediator to testify, give an affidavit, or tender an agreement if required not only by a statute (as previously excepted) but now also by a mediation rule promulgated by a state or federal agency. The change clarifies that a mediation rule also serves as the basis under which a mediator may be compelled to breach confidentiality. Summary: What You Need to Do As of January 6, 2025, the new and updated forms should be available for use at www.nccourts.gov, and it is important to ensure your practice aligns with these amendments. The most notable changes include the following: Two different mediator designation forms, Attorneys do not need to sign the settlement agreement, and Revised mediator substitution form.

Managing Emotional Clients

By Colleen Byers • February 6, 2024
Managing Emotional Clients Colleen L. Byers collaborated with fellow neuroscience geek and mediator, Chris Osborn, to deliver this month’s Expert Continuing Legal Education (CLE) Series sponsored by the North Carolina Bar Association. Colleen co-presented about the impact of trauma on clients in the legal system and shared some practical tools for managing difficult emotions within ourselves (as lawyers or as mediators) as well as with our clients. View the CLE, which includes 1 hour of Mental Health/Substance Abuse credit in North Carolina here .