The Three Hour Mediation - Part III
Private mediators charging average rates anticipate the parties will have completed discovery – if the parties aren’t quite ready, they’ll ask for the mediation to be continued. THMs are frequently scheduled before discovery is completed. Typical reasons include: A) The court made me do it; B) The facts are generally agreed on and an early settlement will save money that can go toward settlement; C) There are (inconvenient) facts that someone would rather not have to disclose; and D) We don’t expect the case to settle, but want help with something else.
THMs are meant to work in less than optimal circumstances. Even where settlement isn’t the goal, THM’s can streamline the issues and discovery, positioning the case for resolution down the line, saving $$$ thousands in litigation costs.
Here are two crucial steps for a successful THM:
The Pre-mediation Phone Conference - Best Friend To Speedy Settlements
About 10 days before the mediation, the mediator should have a short conference with each counsel separately. This session tackles important issues that otherwise devour precious mediation time. Is the case ready for mediation or do the attorneys need more time (and perhaps the mediator’s support to the court for a continuance)? Is this mediation not about settlement, but about accomplishing something else? Is there persuasive/damning evidence (videos, deposition testimony, admissions) that a party should bring to show the other party or just the mediator?
During the call, the mediator should confirm that the mediator is expecting and will receive a detailed Mediation Brief and ask if counsel will share the brief, or some part of it, with opposing counsel. Verify that counsel will have someone with settlement authority at the mediation, and if not, that they’ve gotten permission from the other side to instead have a person with full authority available by cell phone, including after hours. Each party should be asked to bring the evidence or support for its litigation position that is likely to be in controversy at the mediation, whether or not it has been formally exchanged. This evidence, or the lack of it, can be just what is needed to clear the clouds that foment unproductive argument and blur reason.
Last, the parties should be asked to bring proposed settlement agreements that include the ancillary terms they will want. That way, while the mediator is out the room, the attorneys can be working on the language, leaving only to add the final amount.
Review Mediation Briefs and Follow Up With Counsel Before the Mediation
Mediation briefs are absolutely critical to the THM. Often, it’s the first time the parties’ attorneys have really thought the case through - matching their theory of liability, or defense, and damages - with the evidence.
Comparing the briefs, anticipated mediation conflicts stand out like elephants. Ignoring the pachyderm in the room until well into the mediation is a huge time suck. For a successful THM, the mediator should contact counsel again after reviewing the briefs, at least a couple days before the mediation asking counsel to be prepared to address the conflicts. Likewise, when the briefs or pre-mediation phone call reveal that the parties do not have the same recollection of the settlement offers/demands that were exchanged, the parties should be asked to bring their written settlement communications to the mediation. If medical bills don’t add up the same, the parties should be asked to bring evidence to support their figures.
The pre-mediation conference and post brief follow-up do more than just smooth the way for substantive settlement discussions. These connections tell counsel that the mediator is taking their mediation seriously and they should too. If done correctly, by the end of the call the attorneys should feel comfortable with the mediator’s approach, trust in the mediator’s competence, and be ready by the time of mediation to build on the work that they feel has already begun.
David Geffen Mediation offers a Three Hour Mediation package for $750.00