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This column follows up on and supplements the column Preparing for Mediation and assumes that the parties involved have prepared and know their cases. It follows the outline of the Mediation Checklist.
Selecting a Mediator
Selecting a mediator can be the easiest step in litigation or it can be one of the hardest. If you have a mediator you know and trust, selecting the mediator may be a matter of seconds for you. If you are new to mediation, new to an area (i.e. mediating in a city outside of your normal practice area), or mediating a special case, the following are useful steps to follow.
a. appropriate experience.
My favorite labor relations mediator is not an attorney and has absolutely no background in personal injury matters. While she has substantial experience, none of it is appropriate for settling a personal injury case.
The alternative is also true. USA&M may be one of the largest providers of mediation services in the nation, but their panels generally do not include anyone with family law experience.
Look for a mediator with appropriate experience in the area in conflict, not just "experience."
b. appropriate training.
Again, look for mediators whose training is appropriate to the conflict to be resolved. Often AFI (Arbitration Forums, Inc.) mediators are excellent choices for insurance coverage questions. AFM (American Family Mediators) training often indicates someone preferable for a divorce or custody fight.
Match the type of training to the type of conflict.
c. appropriate methods.
Some business conflicts are appropriately mediated without any separate caucuses at all (! -- and I must admit, I was surprised the first time I walked into a mediation of that sort). Other types of conflicts cannot be resolved without prying the parties apart. Some types of family disputes work best when the parties have the mediation spread over several weeks. Other types of cases are best handled with one marathon session.
Some types of valuation problem mediations work best with an interventionist (who functions almost like an arbitrator in non-binding arbitration) and other types of mediations are hindered by interventionists. (I have hired specific mediators based on their validity as interventionists and have quit doing business with entire services who supplied only interventionists -- so I am a strong believer that method is very important).
Keep in mind the particulars of your problem and your specific needs (based on the course of the negotiations and what you know of the process) in evaluating methods.
Often the method, the experience and the training are related factors and using the three guides to select a mediator will focus you in all three areas as well as help you to better prepare your case.
d. fee schedule.
In choosing a mediator, review the fee schedule. I've paid between less than $25.00 and more than $1000.00 a day for a mediator's services. (I should note that for my $25.00 I got three experienced mediators and a facilitator, so fee schedules do not always tell the entire story).
There is little purpose in paying more than the conflict's value for a mediator or balking at charges that are less than 1% of the total case costs.
e. appropriate site.
The site of the mediation should generally be a neutral place. However, some times it is to your benefit to hold the mediation in the other side's territory (Remember: you can always walk out of someone else's office. It is hard to walk out of your own).
At times, when parties and mediators are geographically scattered, you may find that the appropriate site works out to be a different place than you anticipated.
f. conflict of interest check.
Watch to make certain that the mediator's partner doesn't represent one of the parties or that some similar conflict of interest does not exist -- including any possible conflicts of interest you might have. To put it bluntly, your brother-in-law may be a fine mediator, but he is probably not appropriate for your cases.
I find a conflict of interest issue rises up about 5% of the time or about one case in twenty.
g. agreement of parties on mediator.
Enter a written agreement on the mediator (if only a simple letter memorandum stating that the parties have agreed to mediate the case before the mediator at such and such a time and place) that is signed by all parties and counsel.
Preparing Confidential Pre-Mediation Papers for Mediator
Some cases and some mediators require pre-mediation papers. Some use them if submitted. Some refuse to accept or use papers. Regardless of whether or not you choose to submit pre-mediation papers, preparing them is an important step in preparing your case.
The pre-mediation papers often provide the advocate and the parties with essential summaries to guide them into the mediation process and are very valuable to the parties.
a. concise statement of issues and positions.
What positions have the parties taken and what are their issues or reasons for those positions. It often helps to approach each point as follows:
issues that support the position
legal elements for each issue/cause of action/defense/etc.
uncontested facts for each element.
contested fact for each element.
This will often disclose positions that have little factual basis, which will help in evaluating them for settlement purposes as well as helping you focus on important areas.
b. identify strengths and weaknesses.
This can be quite simple. Usually fully identifying the issues and positions will illustrate the strengths and weaknesses as well. This is also the time to consider legal trends, how strong and how certain your witnesses are on the facts and all of the related issues that come to mind in deciding if a case is strong or weak.
c. provide timeline for case and for negotiations.
This is often quite simple. I.e. In 1995, John Smith ran a red light and hit Jane Doe. Negotiations deadlocked at the following positions after ten weeks of discussion" ". Suite was filed two weeks before the one year anniversary of the accident. The parties have exchanged preliminary discovery. Nothing has happened since.
Sometimes a timeline is quite complicated. If the timeline is complicated this is a red flag that the mediator will probably need a road map to keep track of where and when the parties are discussing and may prompt you to prepare one for the mediator even if a road map has not been requested.
d. detail who will be present and their relationship to the case.
This is important to make certain that the appropriate parties attend -- including everyone necessary to make a binding settlement. Remember, of those mediations that fail, 24% failed because of a lack of settlement authority.
Often a necessary person to attend is a non-party -- a senior adjuster, a family member, a minister or some other person. Make sure that the decision maker attends, even if they are not a party or a client.
e. supplement as to appropriate "live" pleadings and case law.
Often the pleadings are not necessary and the case law is not a factor. Some times there is a critical case (or two or three) that needs to be out on the table in order to help the parties appreciate reality and properly evaluate their cases.
Now is the time to clear up those trailing issues that otherwise may not be properly understood.
Pre-Mediation Client Caucus
After all of that preparation, meet with your client and prepare the client for mediation.
a. explain mediation process.
If your mediation session will involve a general meeting with short statements followed by caucuses and will last a day, let the client know that.
If your mediation session will not break into caucuses, warn the client and help them prepare for the long face-to-face disclosure approach.
If the mediation will consist of several days, help the client plan for the process, including setting daily goals and identifying the daily process.
If the mediation stretches over several weeks or months, prepare the client to know when and where and which sessions will include the other parties and which sessions will exclude attorneys or parties.
Sophisticated clients (i.e. a mediation advocate insurance adjuster) need little, if any explanation. Some clients need a great deal of explanation.
b. review Pre-Mediation Papers (with the client).
This helps you and your client understand just what and where the case is. This may be the first time your client has ever had the legal side of his or her case fully explained to them.
c. explain possible benefits of mediation.
Let the client know why you are mediating. Make certain they understand that mediation is a place where they seek their own self-interest and that the process exists for their benefit.
d. explore initial unrealistic positions and sensitive issues.
Discuss those issues, if any, that have emotional weight and the range of reasonable outcomes. Now is the time to understand and discuss the client's unrealistic positions, hopes or expectations and to help a client understand that their case is not going to turn into an advertisement for tort reform.
While you may have properly prepared the client when you opened the file, and then again at the onset of litigation, it helps to aid the client in making contact with and understanding the most likely outcome.
e. discuss authority to settle.
Make certain that the necessary authority will be there and obtain a commitment to settle if a certain specified range of conditions is reached during the mediation. (Nothing is more frustrating than discovering in a mediation that one party "has authority" but that they will only agree to settle at their last position prior to entering the mediation. It is extremely rare for one side to "fall on their sword" in mediation when faced with such a refusal to move at all).
f. warn of possible multiple impasses.
Clients need to be warned that it is quite common for a mediation session to stall more than once and that they can often work through an impasse or two or three to a successful final settlement.
g. review the strengths and weaknesses of case.
Go back over the pre-mediation papers (including what you did not put into them) so that the client has a realistic understanding of the case.
Order Referring to Mediation
If the mediation is Court annexed, review the proposed or the entered order (depending on how the order was entered).
a. double check for confidentiality provisions.
Protect yourself and your client.
b. allocate costs.
Do not leave costs up to any assumptions. You can negotiate better from a written allocation than from an assumption.
c. identify time, place and persons attending.
Do not leave this to chance.
d. make certain that all persons with authority will attend.
Avoid the 24% of failures that come from a failure to have the necessary authority to reach a settlement.
Also, make certain that if a person with control exists, that they will attend (e.g. if the client only makes decisions approved by his parents, have the parents there, even if they are not persons with authority).
A Court's order is always more effective in obtaining compliance than is a general direction from an attorney.
An advocate has an important place in mediation. In some areas of the country, mediation advocates are a separate specialty and are often useful in providing support to an attorney in the first one or two mediations the attorney attends.
An advocate has four very important roles.
a. to persuade and negotiate.
The attorney has the burden of framing the negotiations in a manner aimed at persuading the other side. Since mediation is consensual, all negotiation needs to be aimed at persuading the other side.
b. to communicate and persuade.
Negotiation is underneath every action and is the reason for communicating. Again, communication should be aimed at being persuasive.
c. to protect the client.
No one else will protect the client from FRCE 408(c) or anything else.
d. to appear reasonable and calm -- in command and confident.
The strongest presence in terms of being persuasive and supportive is to appear reasonable and calm, to be in command and to appear confident. The advocate should be the calm at the center of the storm to protect and shelter the party.
Lawyer's Opening Statement
a. introduce yourself -- humanize yourself.
In mediation (and often nowhere else) it is important to connect with the other side and to humanize yourself in their eyes. Short introductions can often be very useful in humanizing yourself. The lawyer on the other side knows your professional qualifications, his or her client needs to know your human qualifications.
b. introduce your clients -- humanize your clients.
After humanizing yourself, humanize your clients (to the extent it is appropriate. In commercial litigation that might be a mistake -- but then it might make a positive difference).
c. acknowledge a belief in the process and your client's good faith.
This is a "cost free" concession. For some types of negotiators it will build good will and it does not hurt or take much time.
d. express sympathy.
Sympathy does not mean that you are giving in or that you are acknowledging responsibility. It does, however, continue to humanize you.
e. outline your position, the basis for your position, and areas of good faith disagreement.
This will help to create good will and it also helps to define (and thus control) the areas of negotiation and contention. It often will draw out and create areas of agreement and consideration.
For the most part, preparing in detail can take you as far as the initial caucus. After that it is your knowledge and skill, your intent and your plans that carry you forward.
a. identify the strengths and weaknesses of case -- discuss.
This is the time to go over these points with the mediator and your client -- especially in light of whatever perspective the other side's opening statement has provided. This helps you renew your understanding and to make certain you and your client are on the same wave length.
b. evaluate the expected outcome of your case.
This helps you and the client consider what happens if you just walk away from the case. Sometimes an evaluation in the initial caucus is a good time to review such things with the mediator. Sometimes it is much better to hold off this evaluation until later in the day. (There is a growing body of thought that implies that waiting until later in the day is superior in terms of avoiding a hardening of position).
c. discuss "the first credible offer" and when to make it.
Some mediators and negotiators believe in the theory of "the first credible offer" and others do not. If you believe in it, now is the time to discuss when to use it. If you do not believe in it, now is the time to explain to your client why it is a fallacy.
d. discuss unanticipated elements or overlooked issues.
Go over things you did not anticipate the other side to say and things you think that may have been overlooked.
e. discuss initial expectations.
Talk with your client about what they expect now that they've been through the opening session and where they want to go in the short term.
The Mediation Checklist can help you in preparing for beginning mediation. In a later column I will discuss strategic planning in a mediation context, but using these steps along with the check list can help you to be more prepared and effective when mediating.
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