Preparing for Mediation
All parties and decision makers must be present at the mediation session. The parties and decision makers must be prepared to remain present to participate in the mediation until agreement is reached or the mediation is terminated.
If an insurance carrier is involved, a claims representative with appropriate authority and with telephonic access to any other decision maker who can grant additional authority.
The mediator is an impartial neutral intermediary whose role is to help the participants reach a settlement. The mediator will not impose a settlement, but will assist the parties in exploring settlement options. The mediator does not communicate with the Court except to file an ADR Outcome Report or seek sanctions for failure to comply with mediation regulations and rules.
Counsel and clients should be prepared to discuss all relevant issues. Before the mediation session, clients and counsel should discuss the mediation process and understand it is confidential and non-binding. As part of preparation, counsel are encouraged to discuss with their clients a complete and reasonable litigation budget, without downplaying the costs of proceeding to trial.
Counsel and clients should be prepared to state their own position and to listen carefully to that of the other side. Persuasive and forceful communication is permitted, but civility and mutual respect is vital. Hostile or argumentative tactics are likely to cause positions to become entrenched and thus discourage progress.
Some mediators may require a brief. Usually the brief will include a concise description of the facts, the parties and their representatives, and any unusual rules of law.
The brief may or may not be exchanged with the other side. Exchange of briefs is helpful where the goal is to present a persuasive case to the other side. No exchange may be preferred where the parties wish to disclose information to the mediator only, such as the range of settlement that is desired.
In either event, parties should be prepared to discuss frankly all aspects of the case during private discussions with the mediator.
The mediator’s opening statement will usually discuss the mediation process and stages, the mediator’s role and the confidentiality requirements.
All participants will be required to sign a confidentiality agreement specifically agreeing to hold confidential all discussions in mediation.
Each party will present its uninterrupted opening statement setting forth its position as to the facts and the law.
After the opening statements, the mediator and parties may ask each other questions or respond to the opening statements. Most mediators will allow this process to continue as log as it appears to be useful.
Thereafter, the mediator will usually call for a private discussion with each side, sometimes called a caucus. During this time, statements previously made in the joint sessions are explored more fully. The mediator should discuss her or his practice regarding confidentiality of information disclosed during private caucuses with all participants present before engaging in private discussions.
In private discussions, clients and counsel should assist the mediator in understanding the issues and interest at stake. The parties may wish to disclose confidential information to the mediator during these discussions. The mediator will help the parties and counsel to see the strengths, weaknesses, positions, arguments, risks and possibilities of their case.
Either in private discussions or joint sessions, the mediator may assist the parties in generating and exchanging proposals for settling the case. When the parties reach a settlement agreement, all essential terms will be reduced to writing, which will be an enforceable contract if the parties so agree.
Although parties are encouraged to exercise restraint with respect to conducting discovery while mediation is pending, any party who participates in mediation retains the right to obtain discovery.
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