Preparing for Mediation: A Short Guide for Attorneys

PREPARING FOR MEDIATION:
A Short Guide for Attorneys

by Stephen Marsh

A. Introduction
Using mediation in litigation requires several generic steps, and includes some steps that apply to litigation even where no mediation occurs.

1. Know your case.
In the context of preparing for a mediation session, "know your case" means knowing and preparing the following elements.

a. Know which facts are disputed and which are undisputed.

b. Know which facts are critical, which are important and which are merely background.

c. Lay out the elements of your cause(s) of action and the facts you have. This will form the background of your preliminary statement.

d. Know your damages or other desired relief (if seeking relief). (Regardless of whether you are moving or defending the case, know what result you want). This will help you focus on what you hope to achieve in mediation.

e. Know your counter-claims and defenses (if you are actively resisting sought relief) and know your liability issues, disputed and undisputed. This is the first half of knowing the points you have to use in negotiation and the mediation.

f. Know comparable jury verdicts (if any). This can be very important and helps you in evaluating your goals.

2. Know your alternatives to settlement.

a. Know your risk. Ask yourself: What is your range of results if you do not settle?

b. Know how long and how expensive it will be to go to trial and what outcome is possible at trial. Ask yourself: What will it cost you to go to trial?

c. Know what results are likely from a trial. Ask yourself not only what the range is, but: What is likely to happen if you go to trial?

d. Be aware of your client''s other options (such as walking away) and other tools (such as binding arbitration or binding summary trials).

Once you have reviewed your case and answered the questions about the alternatives you are ready to talk with your client and spend the appropriate amount of time preparing them for mediation.

3. Educate your client (and prepare yourselves as a team).

· Explain the mechanics of the system (especially how a mediation session goes). Goal: Have the client understand theprocedures and keep them from being surprised by the process.

· Explain the facts as the law sees them. Goal: Help the client to understand that what matters are not "the facts" but the admissible evidence. This helps clients avoid trouble later.

· Explain the law as the State has created it. Goal: Help the client understand that the result they will get will not necessarily be what they think is fair but what the law allows.

· Update the status of the case (where everything is, "how much longer."). Goal: Help the client understand how much, or how little, time settlement can save.

· Explain the status of negotiations (if any). Goal: To make certain that the client approves of at least where the negotiations will start.

· Determine and set the goals that the client is seeking from the dispute and the resolution process. Goal: To make certain that you are headed in the right direction in what you are seeking from the mediation session.

· Define your client''s objectives. Goal: To get concrete goals.

· Examine the alternatives to the client''s objectives. Goal: To help the client think in terms other than win/loss.

· Explain to your client the alternatives to settlement. (including risks, delays and enforceability/collectability of judgments problems, if any). Goal: To keep help the client realize that having a trial and receiving a verdict is not necessarily the end of the process.

4. Validate your opponent''s file.

· Review and make certain that the other side has all of the materials necessary to fully negotiate. 21% of all failed mediations fail because one party did not prepare properly -- often simply because a necessary medical report, bill, or similar item was not provided to them (or not had by the party who should provide it).

· Your goal is to make certain you have everything you need by making certain the other side has been sent everything they should have and that you have asked for and obtained the items you feel you should have from them. You should also read everything again at this point -- before you send it.

5. Review the Mediation Checklist, Provided Below.

· Once you have prepared, using the four steps provided above, you can set up the mediation by using the checklist below. It covers the basic steps and considerations necessary to set up a successful mediation of most conflicts that are in litigation.

B. MEDIATION CHECKLIST

1. Select Mediator:

a. appropriate experience.
b. appropriate training.
c. appropriate methods.
d. fee schedule.
e. appropriate site.
f. conflict of interest check.
g. agreement of parties on mediator.

2. Confidential Pre-Mediation Papers for Mediator:

a. concise statement of issues and positions.
b. identify strengths and weaknesses.
c. provide timeline for case and for negotiations.
d. detail who will be present and their relationship to the case.
e. supplement as to appropriate "live" pleadings and case law.

3. Pre-Mediation Client Caucus:

a. explain mediation process.
b. review Pre-Mediation Papers.
c. explain possible benefits of mediation.
d. explore initial unrealistic positions and sensitive issues.
e. discuss authority to settle.
f. warn of possible multiple impasses.
g. review the strengths and weaknesses of case.

4. Order Referring to Mediation:

a. double check for confidentiality provisions.
b. allocate costs.
c. identify time, place and persons attending.
d. make certain that all persons with authority will attend.

5. Lawyer''s Role

a. to persuade and negotiate.
b. to communicate and persuade.
c. to protect client.
d. to appear reasonable and calm -- in command and confident.

6. Lawyer''s Opening Statement

a. introduce yourself -- humanize yourself.
b. introduce your clients -- humanize your clients.
c. acknowledge a belief in the process and your client''s good faith.
d. express sympathy.
e. outline your position, the basis for your position, and areas of good faith disagreement.

7. Initial Caucus

a. identify the strengths and weaknesses of case -- discuss.
b. evaluate the expected outcome of your case.
c. discuss "the first credible offer" and when to make it.
d. discuss unanticipated elements or overlooked issues.
e. discuss initial expectations.