This page can serve as a checklist. It discusses the principal steps to an effective mediation, including:
· Setting the Mediation
· Pre-Mediation Telephone Conference
· Pre-Mediation Statements
· Key Settlement Terms
· The Mediation
* * *
Obviously, selecting your mediator is the first step. If I can answer questions to help you decide if I'm the mediator for your case, please email or phone me.
Setting the Mediation
Agreement to Mediate. Mediation requires the consent of all parties participating. This means not only agreeing to attend the mediation but, more important, agreeing to work with me to try to settle the case. If any party fails to have a willingness to negotiate and to work toward a settlement, a mediation session can be a waste of your time and money.
Arrange a Date. To set the mediation, I recommend that you select several dates agreeable to all parties, and then email or call me. I will notify everyone of the date or dates that we agree upon and send each of you a reminder of the steps to a successful mediation.
Pre-Mediation Telephone Conference
When the mediation date has been set, I will ask counsel to participate with me in a preliminary telephone conference. This conference is to ensure that each party has the same information and the same understandings about the mediation, to discuss who will attend the mediation (to ensure that there are no disappointments or issues), and to consider practical questions like whether there should be a general session, a mediation conference, or private caucuses only; whether counsel will make opening statements; the time we should allot for these matters; how multiple parties with common interests should be grouped for the mediation; and similar issues. A brief initial discussion by telephone of these issues can help counsel in their preparations and make the mediation more efficient.
Pre-Mediation Statements (Briefs)
I strongly encourage each party to prepare a brief written statement, in no particular form but normally limited to no more than six or seven pages, with the following information:
· The identity of the parties and a brief summary of their claims and defenses
· The key issues separating the parties
· The status of the litigation, including the trial date, if set
· The nature and result of settlement discussions to date, if any
· Your client's position regarding settlement
· Your justification for your settlement position
Written statements from the parties usually shorten the time that the mediator requires to come up to speed in your case, saving you time and money. It is almost always helpful also if the parties exchange these statements, and I encourage you to do so. If there are confidential matters that you want me to know before the mediation starts, please send me a separate note marked "Confidential", and I will honor your confidentiality request. All such statements should be in the mediator's hands at least three work-days, preferably one week, before the mediation date.
List of Your Key Settlement Terms
It is good practice for each party to write out a draft, or at least a list, of terms that you will require in any settlement and to bring this to the mediation. The parties should know what terms are important to them before the mediation starts. (I have seen mediators struggle for eight hours to reach agreement on the money terms, only to have the parties abandon the settlement because of a term that one party "assumed" would be a part of the settlement, but never mentioned.)
When we reach agreement on the money issues (normally the primary point of contention), the parties will also need to agree on, prepare, and sign a memo of the essential terms of the settlement before they leave the mediation. If we have discussed these terms during the mediation, then documenting the agreement is much faster.
Remember: The mediator will not draft the settlement agreement; this is the duty of the parties and their counsel. Be ready!
Mediators collect their fees before the mediation commences, making this one of your "check-list" items: Remember to meet the payment requirements of your mediator. [For my terms, see the section entitled "Location, Fee" below.]
Attendance at the Mediation
Each party should identify to the other parties, preferably in the pre-mediation telephone conference, the individuals who will attend the mediation. Agreement on attendance is important to the mediation process, and it is the parties' responsibility to resolve any attendance issues before mediation begins. (While I am willing to mediate on terms agreeable to all parties, it is in your interest to be clear about this: You do not want another party to abandon the mediation because you "assumed" that they would agree for your client or carrier to be present by telephone.)
Although I will work with you as all parties agree, I encourage each party to ensure that it has a person with the authority to settle the case present in the mediation room. It is extraordinarily difficult for a mediator to have a persuasive impact on the thinking of a client or claims adjuster who is waiting at a telephone miles or time-zones away.
Come prepared to work with me to settle your case, and your (your client's) money will be well-spent. I will work hard to reach agreement for as long as it takes. My mediation day is eight hours, and that is what you will have paid me for, but at the end of the day, if we both believe that an additional hour will get us over the goal line, then I will spend that hour without charge. If we have not reached agreement after nine hours, we will decide together whether to work into the evening or to adjourn and finish another day.
* * *
If you would like to read more broadly about mediation principles, practices, and concepts, please click on "Articles About Mediation" in the box above. The articles found there are provided by Mediate.com, written by other of its affiliated mediators, and are changed regularly.
* * * * *
This site managed with Dynamic Website Technology
Products and Services