PREPARATION CHECKLIST FOR MEDIATION 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…

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 78 DISCUSS FINANCIAL COSTS OF LITIGATION WITH CLIENTS BEFORE MEDIATION As I’ve mentioned many times, preparation is the sine qua non for achieving mediation goals. One part of that preparation is to discuss with clients before (and not during) mediation the financial costs of ongoing discovery, possible motions and eventual trial or arbitration if the case should not settle. In non-contingency fee representation, pre-trial and trial costs can be…

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…

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…

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…

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…

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…

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…