ADR Services

Client Preparation Checklist

Here is the checklist for the pre-mediation meeting with your client.

Discuss and explain these subjects:

1. The mediation process. 
2. Preview the cast of characters expected at the mediation; the mediator, opposing counsel, other parties and/or their representatives. 
3. What is expected of the client in a joint session and caucus. 
4. Evidence, ranges of outcomes and expectations. 
5. Case’s current discovery and procedural status.

Give your client the following:

1. The mediation hearing notice including the place, date and time of the mediation. 
2. Written directions to the mediation office, where to park and the cost. 
3. Copies of all the briefs.

Finally, agree when, where and at what time you will meet the client before the mediation and exchange cell phone numbers, just in case there is a hiccup in the plan.

Draft a Deal Memo

A deal memo sets out the key points necessary to complete a transaction.  By drafting a deal memo before a mediation, you can advance your case in three stages.

1.      You and your client know what the negotiating points are and where there might be room for give and take.

2.      In private caucus with the mediator, confidentially share the deal memo.  The deal memo becomes the mediation’s de facto agenda and the mediator knows what must be done to settle the case.

3.      When you are confident that the other side is negotiating in good faith and progress is being made, allow the mediator to share your deal memo with the other side.  This will focus and accelerate the negotiations.

This three step process takes advantage of the psychological principle, “when you control the process, you control the result.”  The deal memo sets the tone for and controls the mediation, increasing your opportunity for a favorable outcome.

Bring a Settlement Agreement on disk

Many mediations are needlessly extended, negotiating details and documenting the settlement. Once the basic deal is agreed to, circulate the draft settlement agreement. This focuses and accelerates the final negotiations and documentation process. With the universal use of Word or WordPerfect, the final settlement agreement can be revised, printed, signed and distributed at the mediation's close.

Many cases cannot be settled without resolving liens, e.g. worker’s compensation, government retirement funds, prior attorneys and medical payments (auto, private insurance, MediCare and MediCal).

Before the mediation, determine the amount of any liens, the contact person for negotiating the lien and, if possible, the negotiating parameters.  Decide if the lien claimant needs to participate in the mediation and if so, in person or by telephone.  MediCare and MediCal generally will not negotiate their liens until after the case is settled.

Tip to plaintiffs’ counsel:  Controlling lien claimants usually enhances the plaintiff’s net recovery and lien claimant’s counsel can provide help with trial costs.

Tip to defendants’ counsel:   Purchasing liens at discount generates credits against a judgment and removes lien claimant’s counsel from the case.

Understand the Insurance Issues

Understanding insurance issues (coverage, limits and consent) promotes communication focused on resolution.  Knowing if a loss is covered, partially covered, questionably covered or not covered encourages realistic dialogue about trial direction, scope of defense, probability of collection and settlement.

If policy limits are low and damages are high, discussion turns to the defendant's ability and/or willingness to contribute to settlement.  Many professional liability policies (doctors, dentists, accountants, lawyers and insurance agents) contain “consent to settle” clauses.  If there is no consent, settlement negotiations are at best, hypothetical and at worst, illusory.

Before the mediation, communicate with opposing counsel about the insurance issues, secure copies of the policy and any reservation of rights letters.  Consider making insurance issues the first order of business, so as not to waste time.

What’s the Plan?

The business adage, “Plan your work and work your plan” applies equally to mediation.  Here are some thoughts to shape your mediation plan.

1. Your plan:  What is your goal for the mediation?  How will you manage the joint session?  Should your client talk during the joint session? How should you present your good points?  How to get information to and from the other side?  What information should you hold back to use to close the deal? 
2. The other side’s plan:  The other side’s plan usually is the reciprocal of yours.  Anticipate their positions and tactics.  What works best in response and when? 
3. The mediator’s plan:  After reading the briefs, most good mediators have a rough plan for the mediation.  At the first caucus, ask about the mediator’s plan.  Listen to the mediator’s ideas; they often reveal information about the other side’s inclinations.  Don’t be shy about giving the mediator your input on the process.

Back-up plan:  If the case is not going to settle, what can you accomplish during the mediation to make the matter resolve more favorably, faster and with less expense?  No mediation is a waste of time.  There is always information to be gained about the other side’s view of the facts and law.  Discovery can be ordered and focused.  And the dollar gap can be narrowed.

Don’t Serve Documents at Mediations.

Do not serve CCP 998 offers, discovery or other pleadings during a mediation.  Evidence Code §1119 makes all documents at a mediation confidential and therefore not usable in subsequent enforcement and/or motion practice.

Consider Tax Issues Prior to Mediation.

Often tax issues drive settlements in employment, business and family law matters.  If litigation counsel does not possess tax expertise, it is best to consult with tax experts prior to the mediation.  Armed with tax options, litigation counsel can protect the client from adverse tax consequences and work toward the most tax advantaged resolution.