Let the ADR Provider Convene the Mediation
You and most of your opponent(s) and/or co-defendant(s) have agreed to mediate. Now comes the hard part; selecting the mediator, scheduling the date and bringing the last party to the table.
Your ADR provider (e.g. ADR Services) can do all the rest of the work. They consult with the lawyers developing a consensus on which mediator will be best for the case. At the same time available dates are cleared. Finally, the sensitive task of rounding up the last party is best left to the neutral ADR provider, whose only agenda is to provide good service. This neutrality plus the momentum of the convening process usually brings in the last party.
Interview the Mediator
Before retaining a mediator and/or attending the mediation, consider calling the mediator and discussing the following subjects:
1. Ask about the mediator’s experience in similar cases, in recent mediations, on the bench and in private practice.
2. Set up a hypothetical similar to your case and ask how the mediator would approach the problem.
3. Ask about the mediator’s style: evaluative or facilitative; structure of joint sessions; preparation methods; interphase techniques with clients and lawyers and documenting deals.
4. Briefs: Content and length? Parties exchange briefs? Lead time for filing?
5. What do people say are the mediator’s best qualities? Where could the mediator improve?
6. Ask about the mediator’s recent successes and failures.
Mediators are in the service business and are happy to speak with you before or after a mediation.
Let the Other Side Pick the Mediator
Once there’s an agreement to mediate, wrangling over mediator selection can be counter-productive. Unless the other side’s choice is unacceptable, go with their pick. Because the other side respects their choice and will listen to their selected mediator, you have a higher probability of settling the case. Even if the mediator is ineffective, not neutral or just plain wrong for the case, you will have learned what the other side considers its strengths and your weaknesses. Then, you can adjust strategy, tactics and approach accordingly.
Ask Around.
Your favorite mediator is unavailable, what next? How do you find the next best choice? Ask…..
1. The other side; they're more likely to listen to the mediator they respect.
2. Your favorite mediator; she knows your preferences and what works best for the case.
3. Colleagues/friends; many firms and organizations maintain databases of ADR professionals.
4. List serves; put out a request for names or a specific name and be surprised at what affiliated strangers will do to help.
5. ADR providers; they have access to more options and it is in their best interest to make you happy.
Parkinson’s Law – Mediation Scheduling
Parkinson’s Law states: “Work expands to fit time available for completion.” Its reciprocal, “work will contract to fit time available” is also true.
A mediation scheduled to go all day, probably will. Conversely, setting a case for a half-day tends to encourage the efficient use of time. When setting a mediation, allow sufficient time to:
- Familiarize the other side and the mediator with your case and the other side’s.
- Negotiate the settlement.
- Finalize and document the deal.
Scheduling the 2+ Day Mediation
A mediation is set for 2 or more days because the case is complex factually and/or legally, the damages are substantial or it has multiple parties or some combination of the above.
Best practice is to conduct pre-mediation conferences with the mediator to determine the necessary participants, issue order, presentation order, time allocation and scheduling. That way information is shared in a structured and efficient manner and no one’s time is wasted participating in a session that does not concern them.
Why Mediate?
Now that mediation is part of the litigator’s tool box, we tend to focus on case resolution and forget that even if a case does not settle we can capture value in four areas.
1. Learn what the other side is up to both factually and legally at fairly low cost.
2. Pitch your case to the other side, seeing what’s working and what’s not.
3. Determine the settlement parameters.
4. Get a neutral third party’s thoughts about the evidence, value and tactics.
When to Mediate?
In a perfect world, you mediate when the other side’s risk is the highest, e.g.
- Before the ruling on a case-critical motion,
- When major discovery is pending against the other side,
- If the plaintiff needs money,
- If the other side cannot afford to continue the litigation,
- Before some unrelated, important business or personal event.
Will the Mediation be Successful?
Before investing in a mediation’s time and expense, agree with the other side to do the following:
- Plaintiff forward damage information to defendant(s) 30 days before the mediation.
- Exchange briefs 7 days before the mediation.
- Conduct one round of negotiations before the mediation begins.
If the mediation is not going to be productive, continue it and gather/exchange the necessary information.
