After mediating over a hundred cases, I’m still surprised by the number of cases where the attorneys have not really prepared for mediation. Some of that may be the fault of the mediators however, because we really don’t push the attorneys to give us information before mediation.
I attended a seminar on mediation years ago, where one of the mediator presenters indicated that the attorney should not bother preparing a written submission because in all likelihood the mediator would not read them. After mediating a number of cases, this statement is simply shocking to me. I want to know what I’m walking into in advance of the mediation so I can be better prepared to help the parties resolve their issues.
Most clients will have no idea how mediation works. I always try to schedule a face-to-face meeting with my client to discuss the upcoming mediation a few days before mediation. I find that if I schedule it more than a week out, the clients may not recall all the details.
The first question all of my family clients will ask is whether the parties will be in the same room during mediation. Answering that simple question relieves a lot of anxiety, but again, many other mediators keep the parties together. You need to discuss how the process will work, how long the day will last, how the agreement may be drawn up, and, most importantly, what the client anticipates a favorable outcome would look like.
Most clients have an unrealistic expectation that mediation should only take an hour or two. Most clients are inclined to be upset by the initial offer unless they understand that this will be part of an ongoing give-and-take in all likelihood. During this meeting, you should candidly address the strengths and weaknesses of the case and what you anticipate the other side will be raising.
I have kind of a checklist that I go over with clients. I discuss the items above, but I also encourage them to bring a book or work because I tell them that there will be a lot of downtime during mediation when the mediator is with the other party. We talk about the fact that mediation is to involve the parties only unless we have discussed this with the mediator ahead of time (subject to some specific issues involving domestic violence victims).
I go through the things that the mediator is required to tell them, such as the duty of confidentiality, the fact that the mediator cannot be subpoenaed, and the fact that the mediator cannot provide legal advice.
Make sure you tell your client to be careful about disclosing their bottom-line positions when the mediator is in the room. The mediator is not going to disclose that information, but the mediator is never going to forget ultimately where your client wants to be. The client is going to have a much better comfort level if you outline exactly how things are going to go and then, at least initially, things flow exactly as you have outlined. The one thing that no one likes is to be surprised during a critical part of their life. At times, I think we sometimes forget that, for the client, this is an extremely important day even though for the rest of us this is just another day at the office.
In civil cases, it is critical that your client understand that they are not going to get everything they want. If you are dealing with an insurance adjuster, it is critical that you provide all pertinent information so that the adjuster can appropriately set reserves on the case.
In almost every mediation that I’m representing a party, I provide a written submission. The format is generally the same. I usually tell the mediator about the parties, the court, the issues, any upcoming hearing dates, any settlement discussions before mediation, and then I generally have a section for miscellaneous items. This is the same information I like to have when I am the mediator. In many of these cases, I send a copy of the submission to the client to review and approve before I send it.
In family law cases, I almost always send over an asset sheet which spells out the assets and any documentation backing up the values. In a few cases, I’ve privately emailed the mediator or called the mediator about any particular issues with the client that I think the mediator needs to know about.
In one particular mediation, my client was very sensitive about a particular piece of personal property (I learned this the hard way when I mentioned it in a meeting). I mentioned this to the mediator ahead of time so that this would not be an impediment at mediation. In another case, I told the mediator in advance that my client was having a really difficult time emotionally with the mediation and that we might need more time with her as a result.
In civil cases, I provide a history of the case, any pertinent pleadings or documents, a summary of medical bills and insurance payments if applicable, and any legal issues with supporting case law if necessary.
If I have the time, I like preparing and sending a draft agreement to the mediator ahead of time. That helps me focus on all the issues and oftentimes will save us a lot of time at the end of the day because an agreement is partially drafted ahead of time. Make sure that your parties have made childcare arrangements if they need to stay late. In family law cases this has been a problem in a few cases because the parties did not plan ahead.
In complicated cases or cases involving large amount of assets, I really appreciate as a mediator having a pre-mediation conference with the attorneys. That allows everyone to have a good sense of what the focus of mediation will be and to work out any issues ahead of time.
You need to spend time with your file to make sure that you can find any necessary information that you need during mediation. You need to make sure that you’re aware of any issues where the mediation may get postponed because you did not respond to discovery or other requests ahead of time.
Let the mediator know if there are any reasons that you cannot devote the full day to mediation. If one of the attorneys has a conference call or short hearing to attend, that may not impact the mediation. It is frustrating for all concerned to be told halfway into mediation that one of the parties or counsel have to leave within an hour because of some prior engagement that was never discussed ahead of time.
If possible, I try to reach out to the opposing party to see if there’s anything that they feel they need for mediation and follow-up on any points of agreement. Likewise, if you are representing the plaintiff and there are additional medical bills, medical treatment, or any other significant things affecting the value the case, you need to get that to opposing counsel well in advance of mediation. If that information has not been provided to the defense attorney well in advance of mediation, it is very unlikely it will be considered at all.
Years ago, I attended a mediation representing a defendant in a medical malpractice case and the plaintiff showed up at mediation suggesting that the plaintiff would have future medical bills which were substantially in excess of the patient’s actual medical bills to date. The mediation was resolved without any consideration of these bills at all because the adjuster had no basis to include that in setting reserves.
As a mediator, I want to know as much as reasonably possible about the parties and the issues before the parties walk in my office. If the parties have not provided me information, I generally have my paralegal pull the court’s chronological case summary, and I review any substantive pleadings that have been filed. This helps me figure out where the parties are in the process and look at potential issues. It also helps me fill in gaps if the parties have not provided me information.
I have had mediations where I literally had no information about any issues from the parties except what I was able to pull off the court’s file. I think it enhances the mediator’s credibility substantially if the mediator walks in and is able to show each party that mediator has done his or her homework and is engaged in trying to resolve the case. (In a few cases, one of the parties in the mediation has subsequently tried to retain me to represent them for another case because they appreciated our attention to detail).
I always send an introduction letter to the parties. Because of the recent change in the ADR rules, I added a specific provision as to whether either of the parties identify themselves as a domestic violence victim. Under the recent rule changes, a person who so identifies is entitled to have a third-party present at mediation. As I read the rule, the mediator has an obligation to ask these types of questions, but, ultimately, I think it is for the parties’ counsel to advise me ahead of time about any issues like this.
I recently attended mediation seminar where the mediator generally worked with the parties over multiple sessions and she actually did a formal domestic violence screening of each party which involved a large number of personal questions. Domestic violence cases also raise other potential concerns that should be flagged to the mediator as early as possible.
I’ve had a couple of cases where criminal cases were pending against the other party involving domestic abuse. The layout of the mediator’s office generally had the parties in separate rooms across from each other in the middle of a small entryway. In that case, the mediator made arrangements to have one of the parties in the building next door and also retained a security guard for mediation only. If one of the parties has a protective order or criminal case involving the other, I really want the victim to arrive at mediation early and be secure in their room before the other side shows up.