Ed Ahrens, Jr., Esq. writes monthly thought provoking Editorials on mediation. These views are Ed's and do not necessarily reflect those of Florida Mediation Group.

At the commencement of a mediation, the first thing a mediator sees, even before introductions, is the appearance of each of the participants—attorneys, adjuster, parties. Some of the sights are pleasing, others can be distressing. Attorneys sometimes are prepared "upstairs" but not "downstairs," that is, their cases are entirely in their heads and they bring no documents or records to the proceeding. The mediator’s mind begins to spin with ugly possibilities: opposing counsel will request to see a document and it will be sitting back in the other attorney’s office; opposing counsel is gearing up to respond in kind, i.e. furnish nothing, even though he or she has a full file at the table; or counsel is there only because the court ordered them there, and they have no intention of negotiating a settlement.

In contrast, when counsel has requested a VCR, has brought large blowups and other demonstrative displays they intend to use in court, and is pulling into the room an airline luggage cart bearing his complete file—the mediator can be pretty sure that attorney means business, is there to negotiate a settlement, and is prepared to demonstrate through documentary and other evidence the validity of their claim or defense.

In most cases, the appearance or non appearance of these accouterments fall somewhere between the two extremes, and, of course, they will vary with the nature of the case, the evidentiary magnitude of which is generally known by attorneys on both sides.

As important as the mediator’s impression, positive or negative, is that of opposing counsel or the adjuster or even the parties. If they are turned off by what they see, or do not see, the proceeding may be over before it starts. On the other hand, it is no mystery why, when one attorney shows up with thick files and other evidentiary battle gear, the other side (perhaps not as prepared) is at a psychological disadvantage. Even if counsel pretends not to be impressed, the client can become very nervous.

So, what are we saying? I guess it’s simply that being prepared for mediation involves both the appearance and reality of preparation. It is all well and good to have such a fantastic memory that one need not bring anything but his or her monstrous brain (normally contained in an enlarged head), but be fair to the process and to the other side. At least appear to be prepared, both to present your case in the best interest of your client and to respond to factual inquiries by the other side.

Yes, the court makes you be there, but, since you are there, why not make the most of it. In the absence of a final dismissal or summary judgment, no reasonable, experienced attorney would pretend to have a lock on the outcome of a trial. Different damage evaluations, perhaps, but these more often than not can be resolved at mediation. This after all is the function of mediation. Now go forth, be a good scout, and Always Be Prepared.

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3/18/99

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