Initiate the Mediation

Many conflicts such as disputes between businesses, conflicts at a workplace, or divorcing couples can be mediated before the filing of lawsuits.  Litigated disputes can be mediated and resolved at any stage of the litigation process, including during the appeals process.

Getting to resolution often begins before ever we meet. Once we set up a mediation, I start working diligently towards resolving the conflict. I will usually call the parties to discuss anything that you believe might be helpful to discuss before the mediation session.

Schedule the Date

Once the parties make the decision to mediate, we will confirm with all the parties before setting the date for mediation.  Most, if not all, mediations are usually set for completion in one day. The day of mediation can be as long as it takes to get a resolution if the resolution is even remotely in sight.  Mediations can be conducted at my office location or any other location that is agreeable to all parties.

Pre-Mediation Teleconference

Once the mediation is scheduled, I will call the parties’ counsel for a pre-mediation call.  Usually, this is a teleconference call with the counsel for all the parties.  This call is an opportunity to work out the logistics for the mediation, and more importantly, exchange information that is relevant to and important for a successful mediation. If needed, I may also speak with each of the counsel separately.

Exchange Information

I encourage parties to exchange relevant information about their case, especially data such as damage calculations or other data in advance of the mediation.  I encourage parties to bring a draft settlement term sheet that has the standard settlement terms for the type of case at issue.  In cases that may have complex terms of a settlement, it might be useful to exchange drafts of those settlement terms.  In the interest of saving time and avoid drafting a settlement agreement at the mediation, it might be useful to draft a skeletal settlement agreement before the mediation session.

Mediation Briefs

Briefs are a good way for the parties to provide me with relevant information about the case. I will arrive at the mediation fully prepared having read your briefs. I will read whatever materials you provide me so I can be fully prepared; however, please try to keep the briefs to under 15 pages, so I don’t miss some critical information. Here is a brief description of what should be included in the mediation briefs.

Who Should Attend

The most important factor underlying the success of mediation is the personal presence of the final decision makers with authority to settle the case.  Therefore, I strongly encourage parties to have the decision makers with final settlement authority be present at the mediation.  In addition, if the parties feel the presence of any other individual(s) would be an aid in the resolution of the dispute, then those individuals should attend the mediation. Parties should have other professionals, such as tax advisors, counselors, etc. available by phone if necessary.

Mediation Session

Many mediations begin with an informal joint session, where all the parties and counsel meet together with the mediator and have an opportunity to summarize their evaluation and perspective of the dispute.  Joint sessions are useful if the parties use it to explain in a low key manner the important issues such as how damages were calculated, etc., but can be counterproductive if used to in an adversarial way to persuade each other that their respective positions are correct.  Most of the time a brief joint session just to introduce the parties may be more appropriate and productive.  After this joint session, the parties are separated into private conferences/caucuses and the mediation process progresses until a resolution is reached.

Post Mediation Follow Up

If a resolution is not reached at the mediation session, I don’t give up but continue to follow up with the parties and keep working to create an opening for a resolution.