Mediation is a process. That process begins well before the day of the mediation. Unfortunately, all too often, inadequate preparation means that the mediation may be headed for failure. But there are ways to maximize the chance that the mediation will be productive and result in a settlement.
Choose the Right Mediator
Try to choose the right mediator. The mediator should have credibility with both sides. Institutional clients may have their mediator approved "lists" but that doesn*t necessarily translate to finding the best mediator. Try to find a mediator that both sides respect and one with the right skill set for the job.
Schedule a Date, Time and Location
Schedule a date, time and location that allows for adequate time for the parties and counsel to work as long as necessary. Unreasonable and artificial time limits, or threats to walk out of the mediation, more often than not are deal killers. Also, time should be allotted at the end of the day for drafting of the settlement agreement. Counsel and their clients should be ready to work into the evening if required.
Submit Your Brief in Advance
Submit your brief well in advance of the mediation. Your brief should concisely summarize the facts and analyze the issues. A lengthy discussion of the law is unnecessary, with the exception that you should selectively highlight key cases or statutes that may be impactful and support your position. Indicate the procedural status and summarize important discovery. You should also discuss known settlement obstacles, and recap settlement discussions that may have already transpired.
Reach an Agreement with the Other Side
Try to reach an agreement with the other side to exchange briefs. While you no doubt will endeavor to write a persuasive brief for the mediator, your real job is to persuade the other side (including insurance claims representatives) as to the merit of your position. Parties and their counsel often get entrenched in their positions by the time they arrive at the mediation. A party will likely not be receptive to new or different information if surprised at the mediation. Even if the other side won*t exchange briefs, consider sharing your brief anyway. Your brief is inadmissible in the litigation pursuant to Evidence Code *1119. However, also keep in mind that pursuant to Evidence Code *1120, evidence that is otherwise admissible does not become inadmissible solely by use of it in mediation or reference to it in your brief. Feel free to provide the mediator with a separate confidential *pocket brief* or letter if you have information to submit that is for the mediator*s eyes only.
Work Up Your Case in Terms of Facts
Work up your case in terms of factual investigation and required proof. Engage in meaningful written discovery and take important depositions. If you lay the groundwork before the mediation by providing the other side with evidentiary proof supporting your claims or defenses, then you have a real chance of making an impact on settlement before the day of the mediation. It is critically important to recognize that claims personnel usually line up settlement authority well before the mediation. The earlier you can furnish claims personnel with important evidentiary proof, the better.
Bring Decision-Making Authority
Bring clients to the mediation with decision-making authority. Parties must attend with authority to execute an agreement if you desire enforceability under CCP *664.6. See Levy v Superior Court, 10 Cal 4th 578 (1995). Decision makers can*t possibly appreciate the dynamics of the mediation if periodically checking in over the phone. Also, there is a risk that the absent decision-maker will say *no* based upon inadequate or misinformation. Non-verbal communication is also important. There is simply no substitute for physical presence at the mediation. However, if physical presence is not possible and a decision maker will not be in attendance, then do not surprise the other side with this fact at the mediation. Make the mediator aware of this fact before the mediation. The mediator can then apprise the other side of the situation.
Prepare Your Clients Before the Mediation
Prepare your clients before the mediation. The clients should understand the strengths and the weaknesses of their case. That includes a realistic evaluation of the settlement value. Again, clients do not react well to surprise on the day of mediation.
Communicate Before the Mediation
Communicate with your mediator before the mediation. It is not arbitration--ex parte communication with the mediator is part of the process. If your mediator does not arrange a pre-mediation call with you, then take the initiative to set up a call. The pre-mediation call is an opportunity for counsel and the mediator to discuss various obstacles or issues. Are there things the mediator should avoid saying in front of the client? What settlement discussions have already taken place? Mediators learn a great deal in these calls that will help build a strategy for the mediation. And of course, it obviously doesn't hurt if you can get the mediator to understand your client*s point of view before the mediation.
Envision the Mediation Unfolding
Think about how you see the mediation unfolding. Will you want a joint session with the other side for any part of the mediation? Alternatively, will your client prefer to remain separated from the other side throughout the day? Might a brief "show and tell" presentation by either counsel to the other side be useful? Try to avoid going to the mediation with the intention of presenting outrageous offers or demands. This strategy usually backfires.
Are There Any Issues?
Are there issues, such as insurance coverage, that may lead to an insurance mediation within the mediation? Have those issues been vetted and explored before the mediation? If multiple carriers will be participating in the negotiations, have they ironed out issues between them so that offers can be presented to the plaintiff? Should there first be a defense only mediation (or half-day session) to address obstacles between defendants or their carriers before mediating with the plaintiff? The mediator may request a call with the insurance claims representative(s) before the mediation. Your mediator needs to understand any such settlement obstacles before the mediation. This will help everyone develop a strategy for the mediation.
Bring a Draft of the Settlement Agreement
Bring a draft settlement agreement (even if only an outline of key terms) to the mediation. This requires counsel to think about potential important settlement terms before the mediation such as confidentiality or tax issues. Too often, settlements are jeopardized because counsel and their clients did not consider or address important settlement terms before the mediation and surprise the other side with *important terms* late in the day.
The reality is that any given mediation may be destined to succeed or fail even before the date of the actual mediation. But with thoughtful and adequate preparation, you greatly increase the chance that your mediation will result in a settlement.
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