Posts Tagged ‘preparation’

BRING ESSENTIAL DOCUMENTS TO THE MEDIATION

Besides bringing your wits, clients and people with authority to settle the case (see Mediation Message No. 38) to mediations, you are strongly advised to bring the entire file and a long form settlement agreement.

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. If the needed writing or exhibit is not available, the lawyer must then ask a person at his/her office to fax or e-mail the document. And, if the requested item cannot be found or forwarded, its immediate effectiveness is lost with resulting negative consequences.
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PRE-MEDIATION COMMUNICATIONS

Either a party’s attorney or the mediator should consider contacting one another prior to the mediation date whenever either believes there is an issue that might impact the mediation process which needs to be discussed beforehand. Such communications 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. A full discussion of Wimsatt can be found in Mediation Message no. 39.)
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APPROACH MEDIATION AS IF IT WERE A COURT TRIAL

Since most civil matters settle rather than are tried, the mediation of those cases assumes critical importance because it becomes, in effect, your “day in court.” Thus, approach this phase of the litigation process as if it were a court trial, rather than just another settlement conference, because there is a direct correlation between extensive mediation preparation and the realization of expectations. The following are recommended steps, many of which are used in trial preparation, for achieving the best results at mediation for your clients:
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WHO SHALL BE THE CLIENT’S REPRESENTATIVE?

Quite often, attorneys have no control over who shall be the party’s representative at mediation, especially if the litigant is an individual or the involved business is small. But when extenuating circumstances prevent the business owner from appearing or the entity is large enough to have multiple decision-makers, the attorney should take an active part in deciding who the representative shall be. The following two factors are considerations when making that choice:
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Questions to Consider Before Commencing a Mediation

Effective mediation preparation includes asking yourself questions about the status of your own case, the opponent’s case, opposing counsel and the mediator. Specifically, the following inquiries should be covered:

What are the strengths of your case? Certainly, you will want to advise the opposition, if there is a joint caucus, and/or the mediator about all of the factual and legal factors why you shall prevail at a future trial and are, therefore, entitled to a favorable settlement.
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DEMONSTRATIVE EVIDENCE

No experienced lawyer would go to trial without demonstrative evidence or illustrative aids that effectively emphasize the critical factual or legal parts of his/her case. Such evidence can 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. It is for those same reasons that demonstrative evidence should be used at mediations.
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JURY INSTRUCTIONS

While sound preparation by plaintiffs and defense lawyers for mediation, motions and trial has always included a review of the BAJI instructions for the elements of the causes of action to be litigated, the creation of the new Judicial Council of California Civil Jury Instructions (CACI) makes that review even more critical. These new instructions, which are not copyrighted, can be accessed on both LexisNexis and Westlaw, although the LexisNexis site is much easier to use.
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