Accounting for Law
Family, Mediation

Differences between litigation, mediation important

While they share many basic elements, advocacy employed in mediation has to be different from that used in litigation, given the forum and audience, Toronto family lawyer Herschel Fogelman writes in Lawyers Weekly.

In an article focusing on the differences in approach that an advocate must employ at three critical stages in the mediation process, Fogelman says the most important piece of advocacy comes before the mediation begins.

“A huge part of counsel’s job is managing expectations, and that is especially true at mediation,” he writes. “Counsel must have an honest dialogue with the client to ensure he or she understands that mediation is a compromise attendance and that in order to reach a deal, both parties are going to have to make compromises.”

The three stages Fogelman discusses are: preparing the client, preparing the memo, and the attendance.

When preparing the memo, Fogelman, principal with Fogelman Law, writes, “Counsel need to draft the mediation memo in a purposeful fashion, with the primary purpose being a settlement within reasonable ranges given the facts and the law."

Once you’ve reached the attendance, writes Fogelman, “If counsel have properly prepared their client and prepared good materials, much of the advocate’s hard work is done, or at least shifts to the mediator. The most important piece of advice is to let the mediator do his or her job as mediator.”


To Read More Herschel Fogelman Posts Click Here
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