A MEDIATION CHECKLIST
There are tactical and ethical considerations involving mediations. The following discussion emphasizes both aspects.
Talk to the client about mediation and its benefits and negatives. The ABA’s Section of Litigation, in Guideline 3.1.1, provides that “A lawyer should consider and should discuss with the client, promptly after retention in a dispute, and thereafter, possible alternatives to conventional litigation, including settlement.” Clients should also be told about the risks of litigation, including trial, mediation costs and the financial advantages and disadvantages of settling or going to trial. In discussing a mediation, provide the client beforehand, pursuant to Evid. Code sec. 1129, with a writing containing the confidentiality restrictions in Evidence Code section 1119 and that the client shall provide the attorney with a written acknowledgment that he or she has read and understands the confidentiality restrictions.
Decide when the mediation should be conducted. Should it be conducted pre-filing; shortly after the complaint has been filed, which can bring about a covered claim; shortly before a dispositive motion or just before the trial or arbitration?
Choosing the mediator. Select a mediator whose knowledge of the applicable legal principles and style fits the needs of the case. It is also beneficial to work with a person whom the lawyer has worked with previously.
Consider talking to the mediator beforehand. A pre-mediation conference may be helpful if the mediator should be told about attendance issues, factual or legal issue that cannot be adequately discussed in a brief or that a client is unrealistic or difficult. (Such discussions are confidential. See Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137 holding that mediation confidentiality applies to any writing or statement that would not have existed but for an impending mediation.)
Be familiar with the applicable legal principles. Review the civil jury instructions for the elements of the applicable causes of action and the leading legal texts for additional relevant law. Review the standards and rules applicable to mediations, in particular, the requirement for court-ordered mediations in Rule of Court 3.874 and that all communications in mediations and writings prepared expressly for those mediations are confidential, pursuant to both Evidence Code sections 1119 et seq. and Foxgate Homeowners Association, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, Rojas v. Superior Court (2004) 33 Cal.4th 403 and Cassel v. Superior Court (2011) 51 Cal.4th 113.
Analyze the factual and legal strengths and weaknesses of the case. Write out the elements of every cause of action and then, in adjoining grids, insert all of the admissible evidence in support of every element. Be prepared to defend any cause of action that lacks evidentiary support or uses evidence that is arguably inadmissible.
Provide an interesting and timely mediation brief. Provide a brief introduction which incorporates the theme of the case followed by a concise review of the pertinent facts. Do not rehash obvious legal principles; discuss only those issues that are in conflict or are novel. Provide the trial or arbitration dates, whether a dispositive motion has been filed or heard and the status of settlement discussions. Include exhibits that truly clarify or explain factual contentions.
Decide whether or not to reveal a “smoking gun.” Is the information really case dispositive? Will it persuade the jury or arbitrator or is its value exaggerated? Will the information be revealed ultimately in discovery? Is the information inadmissible and, thus, could never be used at a subsequent hearing? Is the financial cost of developing the issue at trial or arbitration prohibitive? Will the matter probably not be tried because of client reluctance, financial costs or the strong possibility that it cannot be won?
Send the brief well before the mediation. Send the brief to the mediators a sufficient time before the agreed-upon meeting date so that that they have ample time to analyze and appreciate your contentions. Briefs filed the day before a mediation will be read but will not have the same impact as those sent ahead of time.
Exchange mediation briefs. Exchanging the briefs is recommended. If a party doesn’t want the opponent to know about facts (including witness declarations), legal theories or argument that are best held in reserve, put them in a separate, confidential brief for the mediator and provide the known facts and contentions in a non-confidential memorandum. At the end of the day, experience has proven there are few issues a party chooses to keep secret throughout mediation.
Prepare clients for the mediation. Advise them about the purpose of the proceeding, what you’re trying to achieve, mediation procedures (such as confidentiality), how to dress, where to park and how to act when the mediator is present. Discuss whether they should take an active part in the mediation and, if so, what questions the mediator may ask them. Advise them to bring something to read or occupy their time during the lulls when the mediator is not with you.
Discuss opening demands or offers with the client. Talk to the client about the terms, including financial, that should be sought.
Persons with authority shall attend the mediation. Cal. Rule of Court 3.894, subd. (a)(1) and (2) require the attendance of counsels, clients and insurance representatives in court-mandated mediations, unless excused. Even if the mediation is not court-ordered, settlement is more realistic when the decision makers are present to hear about the benefits of settling and/or the downsides of going to trial.
Determine whether any witnesses, other than the client, should attend the mediation. Is there a credible witness, whether in person or by declaration, who can corroborate the client’s version of the facts when the client’s credibility is challenged? Experts can be effective whenever an issue of liability rests substantially on their opinions and their identities are already known to the opposing party.
Use demonstrative evidence and illustrative aids. Use physical evidence and illustrative charts (such as a timeline) to clarify or amplify the testimony of witnesses, make abstract concepts real and more vivid and make a case look stronger than it might really be. In other words, make your case more interesting and powerful by playing to the mediator’s visual senses.
Bring essential documents to the mediation. Bring all of the pleadings, correspondence, discovery and exhibits in hard copy or laptop accessible to mediation since it may be necessary, in discussing the case with the mediator, to refer to a complaint or answer, deposition transcript or interrogatory response or photograph or letter to support or contradict an important issue.
Assess opposing counsels and their clients. Are the attorneys experienced, knowledgeable and prepared or flying by the seat of their pants? Does the plaintiff need to settle the case for financial reasons? Does the defendant have the personal ability or insurance to settle the matter? Such information is helpful in putting a value on the case and determining the opening demands and offers.
Evaluate a worst case scenario if the case does not settle. What will have to be done to try the matter if it is not resolved at mediation and what are the realistic chances of achieving the client’s goals at trial?
Make reasonable demands and offers. Unreasonable demands cause unreasonable offers and vice versa; they also cause delay and stalemate.
Be flexible. Every case is different even if, on first blush, it appears to be a generic wrongful termination, breach of contract or trip and fall. Besides the unique facts of every case, all parties and their counsel bring different expectations, personalities and perspectives to the process. What has worked in one instance is not guaranteed to work in another. Consider all reasonable options and arguments presented by the mediator. Flexibility goes hand-in-hand with good faith. In the mediation context, it means that the parties will be open to changing their minds; it is the polar opposite of rigidity.
Be familiar with the various negotiation processes used in mediations. Ordinarily, negotiations begin with the exchange of solid numbers, known as “distributive” or “market-place” bargaining. When an impasse occurs or the numbers are too far apart, the mediator may encourage the use of brackets or ranges. Towards the end of the mediation, a party may make a “best and final” or “take it or leave it” offer, both of which will probably lead to a mediator’s proposal. Additional techniques, depending on the circumstances and the mediators, and used less frequently, are “split the baby” and “baseball.” If the case cannot settle, the mediator may recommend a “high-low” arrangement between the parties at trial or arbitration.
Keep the client informed. Do not agree to a final settlement without the client’s consent. See ABA Section of Litigation, Ethical Guidelines for Settlement Negotiations 3.2.1. However, defendants need not be consulted about the settlement or its terms if they are covered fully under an insurance policy that gives the insurer the right to settle the matter without the insured’s consent. [Fiege v. Cooke, et al. (2005) 125 Cal.App.4th 1353-1356].)
Prepare an effective settlement document. If the parties want the settlement agreement to be disclosed to the trial court, include language that “It is the intent of the parties, pursuant to Evidence Code sections 1122(a)(1) and 1123(b) and Code of Civil Procedure section 664.6, that all of the terms of this agreement may be disclosed to a court of law and shall be enforceable and binding upon them in a court of law.” (See Simmons v. Ghaderi (2008) 44 Cal.4th 570.) If the parties want the court to retain jurisdiction to enforce terms in the agreement, pursuant to C.C.P. section 664.6, and, in the meantime, the case is to be dismissed, insert “If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement,” and attach the executed settlement to the dismissal request. (See Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913.)
Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
Copyright Michael D. Marcus, January 2021
Please visit my website at www.marcusmediation.com for information about my mediation and arbitration background and experience. Copies of my previous Mediation Messages and Arbitration Insights are available at the articles link on the website.