Mediation Message No. 111



Successful mediations don’t happen by accident; they are the result of a number of recognized principles, all of which come under the rubric of preparation.

Clients have been prepared. Attorneys talked to their clients about the purpose of mediation, the facts and theory of their respective cases and how to respond, if permitted by the attorneys, to the mediator’s questions.

Timely and interesting briefs have been given to the mediator. The mediation brief provides an opportunity to “sell” the case and impress the mediator with the attorney’s grasp of the facts and law. Avoid rehashing obvious legal principles; summarize the causes of action and discuss only those issues that are in conflict or are novel. Include exhibits that truly clarify or explain a factual contention. Advise about prior settlement offers or demands. And then submit the brief several days before the mediation so that the mediator has enough time to review it and research the applicable law.

Mediation briefs have been shared with opposing counsel. A majority of attorneys do not send their briefs to opposing counsel, which means that mediators must spend valuable time educating the parties about facts and laws in contention. If you don’t want the opponent to know about facts, legal theories or argument that are best held in reserve, then 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.

Attorneys have evaluated their cases – they have thought about the strengths and weaknesses of both their own cases as well as the opponents’ and are prepared to discuss those pluses and minuses with the mediator. Such evaluation should include a review of jury instructions for the elements of the applicable causes of action and defenses as well as the leading legal texts for additional relevant law.

Essential parties are at the mediation. Every party should be at the mediation, unless exigent circumstances exist, their presence has been excused by the mediator or the defendant is insured under a policy that contains no reservations, so that their assent to settlement terms can be easily obtained. Similarly, it is beneficial if all other interested parties and adjusters are present so that the mediator can personally speak to them about factual and legal developments that may impact their respective cases. Otherwise, it is too easy for such a person, if reachable only by telephone, to disregard the mediator’s viewpoints.

Bring all necessary files and documents to the mediation. As at trial, attorneys should attend mediations with all of the pleadings, correspondence, discovery and exhibits in hard copy or accessible on a laptop, since it is often 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 proposition.

Attend the mediation in good faith. Good faith includes having an open mind, a willingness to discuss all aspects of the case with the mediator and an ability to change a point of view if a reasonable, contrary argument has been provided. Attorneys should also have thought ahead as to what is required to try their cases (such as future discovery, possible experts and costs) if they are not resolved at mediation and, more importantly, realistically evaluated the chances of achieving their clients’ goals at trial.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, June 2015

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