You should

Mediators are often turned to only during the late stages of a case (i.e. the courthouse steps before trial, when the deal is falling apart), or after negotiations have failed.  But there is great value in getting a mediator involved in the early stages of litigation and transactional matters.  The bankruptcy world is blessed (or burdened!) with both types of matters.  Mediators can assist with focused negotiation sessions, case management and overall case or deal pre-planning.

Here are a few more ideas on how a mediator can help your case or deal run smoothly, sooner rather than later:

  • Plan for and collection of discovery, due diligence and informal exchange of information
  • Negotiation of memorandum of understanding in transactional matters (i.e. M&A, 363 sales, distressed entity deals)
  • Identification of other professionals, including experts (i.e. valuation experts, appraisers, crisis communication/PR firms) and neutrals that will be useful to the deal or future litigation
  • Discussion of procedural needs
  • Drafting boilerplate language for agreements (i.e. asset sale, closing documents, settlement agreements, cash collateral documents)
  • Identifying key disputed issues and witnesses, or stakeholders
  • Assessing strengths and weakness of a deal and case, or the parties interests and positions regarding same
  • Pre-bankruptcy planning
  • Resolving plan and disclosure statement disputes
  • Resolving feasibility or budgeting disputes
  • Management of dissolutions, wind downs and “going-out-of-business sales” (liquidations)
  • Negotiations between the debtor-in-possession (DIP) and secured creditors prior to filing and at the inception of a case
  • Negotiation of key employee retention plans (KERPs) and other compensation issues
  • Identifying (an agreeable) “stalking horse bidder”
  • Preparing for an auction process

So, start thinking outside of the box.  The returns could be invaluable.

Want more information? Go to, http://www.thelegalfreeagent.com.

Post based on ideas expressed in:

Lande, John, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money, ABA (2011).

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