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© 2019 by Jerome F. Rock

If you're a Practitioner in the Michigan Business Courts, you know that judges are expecting you to have your list of several acceptable mediators with you at the Initial Case Conference, with the expectation that the case may be suitable for Early Case mediation.   If your case is filed in Federal Court, your Rule 26(f) Conference report will require that you deal with the topic of suggested mediators.

Be Aware of Reactive Devaluation.  Whenever you take the initiative to suggest a Mediator for your case, you must overcome what's referred to as a "reactive devaluation" bias.  You're familiar with the exchange.  If you suggest the a name of a Mediator that the other side does not recognize, the other side is immediately suspicious, thinking if it's good for you, it must therefore be bad for them.   Even if you suggest my name, along with other Mediators, that  lack of familiarity  so often drives attorneys to settle on a Mediator that is based simply on who they have both have heard of;  not necessarily the Mediator that has the best strategy and approach for your particular situation. 

If we've worked together before.....

If I have worked with you previously as a Neutral, I'm honored if you include me among your list of preferred Mediators.

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Based on our experience, if you believe my particular skills or subject matter qualifications would be the right fit for this dispute, I suggest that you take this initiative as soon as possible, but definitely before the Initial Case Conference.

  • Contact me first.  I have an extensive list of Case Studies that describe how I've addressed challenging situations and introduced creative techniques that lead to satisfying results.   I may already have prepared materials that could be useful for your present case, some of which are available in this website.   If you contact me, I may already have worked with opposing counsel, which may make the mediator recommendation a starting point for conversation.

  • Contact opposing counsel.  Start the discussion about how you can work together on an ADR plan, have a discussion on "Process", what your clients need, and then work on selecting the Mediator with the appropriate strengths.

  • When you talk to opposing counsel, reference our positive experience, include the Case Study, if applicable, and suggest that your opposing counsel view my website to review my qualifications and experience.  This is the opportunity to expose opposing counsel to my approach, and make my selection something opposing counsel desires.

  • AAA Mediation.org includes a brief video presentation of my approach to Best Practice in Mediation.  Consider forwarding this to opposing counsel, and suggest that his or her client review the brief video as a way to bring the principals into the Process at this early stage.

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  • Reference the extensive list of references for attorneys that have worked with me on Mediation and Arbitration engagements.

    • Auto Supplier Disputes

    • Construction Contract Disputes

    • Business Contract Disputes

    • Business Organization Disputes

    • Non-Compete, Breach of Confidentiality, Unfair Competition

  • Suggest that opposing counsel call me, for a conversation on my approach to mediation, and how I might be a suitable mediator for the case.

  • If you want me to send my website link to your opposing counsel, go to the Contact Form and I'll take care of the rest.

  • Thank you.

If we haven't worked together before, and you'd like to consider me as a Mediator, these are some suggestions that could lead to selecting the best fit Mediator for the case.

If you're committed to improving the  likelihood of achieving a satisfactory settlement to a business dispute, a better way to select a Mediator is to match the experience, skill and subject matter qualifications of the Mediator to the needs of the case. 

 

First, Triage your case. You're in the best position to understand what's needed to quickly and efficiently solve your client's dilemma.  Are you a candidate for Pre-Suit or Pre-Litigation Mediation.  Check out that section of my website and download my Protocol for Pre-Suit Mediation for Business, Technology and Construction disputes. The  White Paper section of this website includes a checklist of important factors that may influence your choice of "Process", and will certainly focus your attention to the necessary leadership qualities of your selected Mediator. 

 

If adopting an ADR track for you case is desirable, become an advocate to persuade your client and your opposing counsel to adopt this approach.  Reach out for the Mediator with the proper skills and strategies required to produce the best outcome. 

This website provides some of the background that attorneys need in order to assess my qualifications and style as a Mediator.  The White Paper section discussion on PreMediation illustrates the rationale and objectives that drive my use of the Pre-Hearing conferences.  I've also provided a Checklist of topics and issues to be addressed in Mediation, a list of references for varying types of matters that I've handled, and Case Studies that demonstrate my approach to different challenges. The AAA Mediation.org includes a brief video presentation of my approach to Best Practice in Mediation. This is less than 2 minutes in length, and will give you an accurate overview of my approach.  This is also a good way to get your client's input; make them owners of the Process.

I limit my practice to commercial and construction disputes because I have experience as a business executive and I understand the decision making and risk assessment process that motivates executives. I try to solve their problem with creative strategies that executives understand and appreciate.  I emphasize starting early, at the Pre-Litigation and Early Case stage,  when we have the flexibility to consider and deploy the use of the best strategies that produce the most satisfying outcomes, with less time and lower costs.

If you'd like to discuss how you can resolve Business Disputes using my approach to Pre-Litigation  or Early Case Mediation to your own client, or to opposing counsel, please forward them the link to this website, get in touch with be by phone to share your thoughts, or use the Contact Form that sends an immediate email to me. 

High Value, Complex and High Emotion Cases.....

For significant high value matters it is an accepted practice to interview prospective Neutrals to determine if their style or personalities are appropriate for the matter, and acceptable to the principals on both sides of the dispute.  I may be able to assist by meeting with each side for an "information meeting" for the purpose of answering questions and suggesting how the Pre-Litigation or Early Case Mediation model could work for their dispute.

 

This also gives the parties an opportunity to "interview" me as a possible Mediator for the engagement, to assess my problem solving approach to their case, and to accept my commitment to act as a creative, assertive Process leader to  guide them to a settlement.  

 

I've found that if both parties are confident with me as the Neutral, their commitment to the Process is significantly enhanced, thereby improving the likelihood of an acceptable settlement.  Clearly the effort involved in this approach is significant, but for appropriate matters, this  has the unparalleled opportunity to get principals committed to the Process.