Preparation for Mediation
Mediation represents a significant investment, and preparation increases the prospects for that investment paying off.
Our preparation begins with the initial telephone conference with all counsel. As the date for mediation draws near, the mediator will typically contact counsel for each party privately to “check-in,” and discuss the case status and any particular issues that may need to be anticipated in advance of the session. These contacts are confidential, unless the mediator is authorized to disclose all or part of any matter discussed.
Mediation is not a passive process. To have the best prospects for success all participants need to invest the time necessary to properly prepare and actively participate. The most productive and cost-effective mediations generally occur when all parties and their representatives do their “homework” in advance. More mediations fail because of a lack of preparation than any other single cause, except unrealistic expectations.
Preparation for mediation can take many forms, but does not need to be time-consuming to be effective. It does need to be thought about and accomplished in advance, though, rather than waiting until the Friday before. The focus should always be on what will likely persuade other parties and their counsel.
Good preparation needs to include the client. Counsel (or other representatives) should talk well in advance with their clients about the mediation process and what to expect, in order to make them feel as comfortable as possible. In addition to the basic strengths and weaknesses of their case, a well-prepared client should understand:
- The voluntary and confidential nature of mediation (and the limits of confidentiality, if circumstances warrant in a particular case);
- How a session typically proceeds, and the use of joint sessions (if anticipated) and private caucuses;
- That a mediator acts only as a guide, and not a judge, and doesn’t decide the case or dictate a particular resolution;
- The principal task of the effective mediator is to actively engage the parties and their representatives as the mediation unfolds, to facilitate negotiations, help eliminate obstacles, and keep the parties on track toward a realistic resolution;
- That in order to be most effective, a mediator should be expected to tell the parties and their representatives what the mediator thinks, not what the mediator thinks they want to hear; and
- Any resolution requires the client’s agreement, as well as that of the other parties.
Being well-prepared builds a client’s confidence in their counsel.
Good preparation also means that the parties and their counsel should try to resolve as many issues (or eliminate non-issues) as possible in advance of mediation. This makes for a more efficient and productive mediation session, where the focus is on those matters that are the real obstacles to resolution.
Particular attention should be paid to non-party lienholders, or others whose claims may affect a party’s decision to settle.
Finally, all persons with decision-making authority should be present. It is a simple matter of both courtesy and practicality — courtesy, because others are taking time out from their lives to prepare and attend; practicality, because the most meaningful opportunity for resolution through mediation occurs when all decision-makers are present and engaged in the process.
If settlement authority is needed from a person who will not be in attendance, then this should obviously be obtained in advance whenever possible. At a minimum, they should be easily available by telephone.
If issues arise concerning preparation you are encouraged to discuss these in advance with the mediator. As a rule, mediation is not the place for surprises if resolution is to be achieved.
Written mediation statements or briefs are not mandatory, but are customary and obviously very helpful. Briefs should be submitted to the mediator by E-mail (see instructions for E-mail submissions), and
exchanged with other counsel, not later than ten (10) calendar days before the mediation session. Special formats are not required, but we will provide a suggested format upon request. Please include any key documents you feel should be read.
We read everything submitted. However, since you are paying for the time required to do so, we encourage parties and their counsel to keep all submissions focused and to the point. Please keep in mind that volume does not necessarily equate to clarity or persuasiveness. In many instances briefs of no more than five to ten pages are the most effective, and we request you keep briefs to no more than twenty-five (25) pages, except in complex matters. If you believe more lengthy materials need to be submitted, please discuss this with the mediator in advance.
Settlement Demands and
Offers in Anticipation of Mediation
A settlement demand or offer beforehand is generally a good idea to “set the stage” for mediation. It should be made sufficiently in advance so that other counsel and their clients have time to consider and react to it. This helps avoid last-minute surprises at mediation which can sometimes inhibit, distract, or even abruptly end settlement negotiations.
Confidential Mediation Briefs
Parties and their counsel may also elect to submit to the mediator — but not exchange — confidential statements regarding matters they prefer to make the mediator aware of privately (e.g., obstacles to or options regarding settlement, or any other sensitive matter). Please mark all private and confidential documents conspicuously. If more convenient, you may also call the mediator to discuss such matters, instead.
As part of their preparation, parties and their counsel are also encouraged to consider in advance whether it is advisable to have their own preferred form of written settlement agreement available for signature at the mediation, depending upon the circumstances of their case.