Each mediation is customized to the situation, but is always based on: honesty with the parties, remaining impartial, maintaining confidentiality, exploring every possible avenue of resolution, and respecting the views and decisions of counsel and their clients. Steve is committed to persevering until the parties reach a settlement. The goal as a mediator is to help the parties find a way to resolve their conflict in a way that makes more sense than continued litigation.
PRE-MEDIATION PHONE CALL
The mediation process is front-loaded to achieve success. Once the parties have agreed to mediate, Steve will conduct a separate pre-mediation phone call with each party. This is the time to discuss the following:
- What, if anything, needs to occur for the parties to be fully prepared to resolve the case at mediation.
- Ideas to improve the effectiveness of the process.
- Potential impediments to settlement.
- Opportunities to resolve any additional disputes between the parties.
- The participation of all necessary parties and decision-makers at the mediation.
- The status of insurance coverage and the participation of the carrier, if applicable.
- The time, location, and other logistics of the mediation that meet the needs of the parties.
Mediation briefs are extremely helpful and will be studied carefully. Briefs should be received at least SEVEN (7) days prior to the mediation. Please include a detailed description of the facts and claims being litigated, the procedural history of the case, a description of any prior settlement negotiations, and the key exhibits.
The parties should exchange mediation statements. This is the time to educate the other side about why you love your case. Please do not wait until the mediation to disclose important information because the other party will likely not have adequate time to take new information into account in the negotiations.
Mediation statements should not exceed 10-12 pages (excluding exhibits) except in very unusual circumstances. It will be easier and more likely for the parties to reach a resolution if the mediation statements clearly identify and describe the core issues in dispute.
Offers and demands in the written materials are discouraged.
If there is something that a party would like to submit confidentially, please do so in a separate supplemental letter and mark it as confidential. Steve will keep these items confidential and will not share with the other party.
PREPARING FOR MEDIATION
Parties are best prepared for mediation when they try to gain an understanding of the other party’s perspective. Parties should spend time assessing their positions and discussing their expectations with counsel before the mediation.
In preparing for mediation it is highly recommended that both parties prepare a confidential exposure analysis for their use before and during the mediation. The confidential analysis should consider the potential monetary recovery on each claim and what the party believes is the likelihood of success. Each party should also prepare a budget estimating the time and cost that the party predicts will be necessary to pursue or defend the case.
The confidential analyses and budgets will often prove invaluable to the parties as they consider how much a resolution may be worth.
THE MEDIATION SESSION
All parties will begin the mediation in separate rooms, with the mediator spending some time with each party in private confidential meetings. If the parties agree and the mediator believes it would be effective, one or more joint sessions may be held. Steve, however, typically engages in “shuttle diplomacy” between the rooms.
Confidentiality is a bedrock principle of mediation. It allows the parties, lawyers, and the mediator to have frank and candid discussions about the risks and rewards of continued litigation. The parties are responsible for determining the extent to which the mediation is confidential, and its communications privileged.