Process Initiation
Once a session is scheduled, I request that you provide me the names of all parties that will be involved in the mediation, contact information of each person representing each party, and identify the lead contact for each party, and, if subject to pending litigation, the case caption, court, and case number. I am also available to assist parties that are seeking to reach agreement on engaging in mediation as a forum in which to resolve their dispute.
Before the Session
Reserving the Session
Once a date is set, I will send to each party’s contact person a contract that will set out the terms of the mediation.
Mediation Structure
One of the benefits of engaging in mediation rather than arbitration or trial is that the parties retain control over the process. Each case is unique and what will be most productive in any situation can vary depending on the circumstances and dynamics. I will work with you to structure the mediation such that it maximizes the chances of success. Another benefit of mediation is that all communications as part of the mediation are confidential.
I typically do not conduct joint sessions unless circumstances warrant it, excepting perhaps a brief introductory session. This is particularly the case where the parties are already familiar with the other party’s or parties’ positions and issues, and little will be gained by a substantive joint session. On the other hand, where a joint session can serve to enlighten a party of the basis of another party’s positions, such a session may facilitate a more productive and efficient mediation.
For disputes that center on expert-intensive matters, the parties may also consider whether a separate, expert-centered session may be appropriate. Even if a separate expert-centered session is not warranted, having experts attend the mediation may also be considered in certain situations.
Mediation Statements/Briefs
For most sessions, it is most helpful to have the parties provide both statements that they will exchange with the other party or parties, and also provide me with confidential statements to convey information that will be seen only by me. However, there may be circumstances in which that process is less efficient or effective. For example, if the parties have been litigating for a long period and have exchanged multiple settlement proposals, and are familiar with the other side’s issues and positions, preparing exchanged statements may not be the most efficient use of time and resources. I will work with the parties to chart out a process that will provide the best opportunity for success in a cost-effective manner.
Exchanged Statements: For any mediation to be successful it is important that each side understand where the other side is coming from. To facilitate that dynamic and where useful, an exchanged mediation statement/brief should, at a minimum, include a discussion of claims and defenses at issue, relevant facts, including material facts in dispute, legal arguments with case and statutory/regulatory citations, the relief being sought, and description of the status of settlement discussions to date, including any settlement proposals. Exchanged statements should be submitted electronically and exchanged, no less than seven days prior to the mediation, and generally should not exceed ten pages, nor exceed 20 pages of exhibits.
Confidential Mediator’s-Eyes Only Statement: In addition to the exchanged statement, each party may at the same time submit a confidential statement that will be not shared with any other party. Among other things, the confidential statement should address a candid assessment of the strengths and weaknesses of that party’s position, settlement prospects and impediments to settlement, what that party needs to get out of any settlement, and what is your understanding of what the other party needs as part of any settlement. The confidential statement generally should not exceed five pages, with no more than 10 pages of exhibits.
Pre-Mediation Discussion
Subsequent to receiving the statements but prior the mediation I will contact each party’s primary contact for a brief discussion of the case and that party’s perspective.