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Design the Mediation Process

From the blog of Nancy Hudgins

(This is the seventeenth in a series of posts on preparing for mediation. Although I may circle back to this topic again, it is the last mediation preparation post for awhile. I’ve been ignoring other topics for too long!)

Many mediators believe that a pre-mediation conversation is helpful to design the process. If your mediator is not calling you to do this, take the initiative and call up the other side and the mediator and have a conversation.

Typically the mediation of a litigated case is conducted more in caucus than in joint session. Both approaches are valid and each may be used at different times within the same mediation. If you’re planning to spend 3 to 8 hours with a mediator, you’ll want to be as productive as possible. Thinking about the process ahead of time, giving your input into it and speaking with the mediator are all ways to position the case, and yourself, for the best outcome.

A pre-mediation conversation can cover decision makers, discovery, and applicable law. Will the right people be in the room? Do you have all the information you need to settle the case? Is there some information the other side can give you (e.g., a complete set of medical bills) that will help you formulate your settlement goals? Is there a legal issue that’s a sticking point to settlement that a letter brief could address?

The pre-mediation conversation can also cover process. How do you want the mediation to flow? Would having a joint session initially be beneficial or detrimental to your client? Would a joint session with lawyers and mediator only or clients and mediator only be productive? Should it be early in the process, or later, after some issues have been hammered out? Would meeting together at the end help the parties mend their relationship?

As in all other aspects of negotiation, being prepared on process can enhance your mediation result.


Nancy Hudgins

Nancy Hudgins, a San Francisco mediator and lawyer, began specializing in civil litigation in the 1970's. She has represented both plaintiffs and defendants, chiefly in personal injury, medical malpractice, elder abuse and product liability lawsuits, but also in a wide variety of complex litigation, including civil rights, fraud and class… MORE >

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