Mediation Message No. 155


Because preparation is an essential precondition for a successful mediation, which effort cannot be emphasized enough, I’m revisiting older Mediation Messages that have examined the subject.

Evaluate the case – Know the factual and legal strengths and weaknesses of your own case as well as the opponent’s and be prepared to discuss those pluses and minuses with the mediator. Such evaluation should include a review of jury instructions and the leading legal texts for the elements of the applicable causes of action and defenses. The best way to prepare for this phase is to write out the elements of every cause of action and then, in adjoining grids (one each for witnesses and  physical evidence), insert all of the admissible evidence in support of every element. 

Assess opposing counsel – Is this person experienced, knowledgeable and prepared or flying by the seat of his or her pants, blithely ignorant of what it will take to try the case? Such information is invaluable in putting a value on your case and assessing the risks of trial.

Prepare the client – Talk to the clients about the purpose of mediation, its processes (including providing a written advisement about mediation confidentiality and obtaining an acknowledgement of such) and the facts and theories of your and the opponents’ cases. Tell them how to dress and where to park. Discuss whether they should take an active part in the mediation and, if so, what questions the mediator may ask them. Discuss the possible demands and offers that may be made to resolve the matter. Finally, talk to the clients about the financial costs of ongoing discovery, possible pre-trial motions and eventual trial or arbitration if the case should not settle. 

Prepare a timely and interesting mediation brief – The mediation brief provides an opportunity to “sell” the case and impress the mediator with your knowledge 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.

Share the mediation brief with opposing counsel – Many attorneys do not send their briefs to opposing counsel, which requires mediators to spend valuable time educating the parties about facts and laws in contention. If you don’t want the opponent to know about aspects of your case  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 that there are few issues a party chooses to keep secret throughout mediation.

Make certain that essential parties are at the mediation – Every party should be at the mediation, unless exigent circumstances exist or their presence has been excused by the mediator. It is also beneficial if adjusters are present so that the mediator can personally speak to them about factual and legal developments that may impact their respective cases. 

Determine whether any persons, other than the client, should attend the mediation – Consider what people, other than the client, will best present the factual portion of your case. For example, is there a credible witness who can corroborate the client’s version of the facts when the client’s credibility is under attack? Alternatively, consider using a declaration when that person is unavailable. Such considerations should not be limited to lay witnesses. While experts are commonly used only in construction defect mediations, they can be effective whenever an issue of liability rests substantially on their opinions and their identities are already known to the opposing party.

Bring all necessary files and documents to the mediation – Bring all of the pleadings, correspondence, discovery and exhibits in hard copy or accessible on a laptop. Bring financial documents if a party’s financial condition may be pertinent to settlement.

Objectively evaluate the case – Consider what is required to try the case (such as future discovery, possible experts and costs) if it shall not be resolved at mediation and, more importantly, realistically evaluate the chances of achieving the client’s’ goals at trial.

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. 

Judge Michael D. Marcus (Ret.)

ADR Services, Inc.

1900 Avenue of the Stars, Suite 250

Los Angeles, California 90067

(310) 201-0010

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