Pre-mediation Memoranda
I find it useful for parties, through counsel, to submit a short memorandum to me prior to the mediation setting out the issues that need to be resolved at the mediation. This memorandum should not only summarize the key law and facts but should include a frank discussion of the primary disputes. Such memorandum should be drafted for a mediator, not for a finder-of-fact. It is helpful to include one's opinion as to what is responsible for the current impasse, along with opinions for facilitating a frank exchange of information and interests. A statement of the party's general interests and needs is desirable. Any party may supply me, before the mediation, with a memorandum containing confidential information or strategy which will not be shared with other parties. In this case, however, another non-confidential memorandum can also be shared with the other parties prior to the mediation. Mediation is quite different from other proceedings that counsel have become accustomed to. Special skills are necessary to make mediation work effectively for your client. I recommend that counsel study such skills. One basic text which I recommend is Mediation Advocacy by John W. Cooley [available at www.nita.org ].
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