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The process starts with the telephone conversations I have with the attorneys before the first session. Occasionally people will question whether these “ex parte” contacts are proper, but mediation is not arbitration. Ex parte contacts are not only proper, they are encouraged. And because they are part of the mediation everything that is said is confidential. In these conversations, I try to get an understanding of each side’s position and a sense of what it will take to settle the case. I also encourage the parties to prepare themselves. They need to gather their written evidence, talk to key witnesses, and be ready to make a convincing factual presentation to the opposition.
Often I will begin the mediation by caucusing with each side. Although I am a believer in joint sessions the parties will usually not have met me beforehand. They should have the opportunity to get acquainted with me and to talk about the process before going into a meeting with their adversaries. I also explain to them what we will be doing in the first joint session, which is primarily to exchange information.
When we do sit down in joint session I remind everyone that we want to hear a factual and low-keyed statement of their position. The last thing we need at this point is for someone to throw gasoline on the fire. It is very tempting to use the mediation as an opportunity to blow off steam or to give the other side a preview of your opening statement at trial. But will these tactics make them more inclined to see things your way? Or will it just harden their resistance?
Getting on the same team does not mean abandoning your beliefs or conceding that the opposition would win. What it does mean is taking a “time out” from the litigation. If the parties can be candid with each other about what the facts are, and honest with themselves about the risks of litigation, then the chances are very good that the case will be resolved.
Michael Carbone is a full time neutral whose practice focuses primarily on construction claims and defects, real estate, business disputes and complex litigation. He has mediated and arbitrated for approximately ten years. He has served as a court-appointed referee in real estate and business matters.
He is a past president of The Mediation Society, a member of the State Bar Standing Committee on ADR, the ADR Committee of the State Bar Business Law Section, and the Board of Directors of the California Dispute Resolution Council.
He practiced law for more than thirty-five years. His practice emphasized commercial real estate and general business matters, including litigation of construction, real property, land use, and business cases.
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