What is the weakness in your case?

What are the weaknesses in your case?

The resolution of a dispute does not just occur on the day of the mediation.   Each participant to mediation needs to prepare their own strategy for negotiation in the settlement.  Based on my experience as a mediator, these are a collection of tasks each participant needs to complete and to discuss with their council and the mediator before the mediation.

These tasks and the discussion with the mediator are confidential.   They are confidential under both Attorney Client privilege and under mediation confidential provisions in court rules, statutes, and standards.

What are the weaknesses in your case?

In this exercise, your attorney will need to take the lead in preparing your answer.  It is important that you understand its impact on your position.

You need to articulate all of the weaknesses in your case.  These can be issues of law.  I have seen issues that involve the statute of limitations.  Other times, I have seen where the original complaint did not name the correct defendants.   These may be extreme examples, but no case is perfect.

There can be issues of evidence.   It can be simple lack of evidence to support your claims.  It can be the credibility of the evidence.  Is it admissible or will its admissibility be challenged.   Seldom is there enough credible evidence to support each element of the claim.  Likewise defenses have their weaknesses as well.

There can be issues of witnesses.  Will they persuade a jury or will their testimony be discounted by the jury?  Are they available?  Will they ‘show well’ to the jury?  Can they be easily impeached?

Is a jury in this jurisdiction favorable to your position or that of your opponents?  And the list goes on.

This can all be summed up by asking what your opponent will say about your case?

Ken StrongmanAbout the Author: Ken Strongman (www.kpstrongman.com) has years of experience and a growing national reputation as a mediator and arbitrator.  He has successfully resolved more than a thousand disputes in the fields of construction defects, real estate, intellectual property, and employment.  He is also a Mediator and Arbitrator for FINRA.

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