Your mediator will encourage and facilitate dialogue, provide guidance, assist the parties in clarifying their interests and in understanding their differences, and will work towards a mutually acceptable and binding resolution. He will not act as a judge, fact finder, arbitrator, nor advocate for any party. He will have no authority to impose a settlement. He will not give legal advice or legal counsel. The parties have retained and will rely upon their own legal counsel and others with necessary expertise to give them advice as needed and will not look to the mediator for such assistance.
The Goal. Your mediator mission is to facilitate a resolution of your case through objective evaluations and sensitive, yet realistic, communications with you and your client. He provide a style of mediation that combines optimism, active listening, and creative alternatives that may be applied toward resolution of your case. The goal of the parties to this mediation is to achieve their own voluntary, mutually beneficial resolution of the dispute.
Objectives. The parties' objectives are to develop and share information on the nature and extent of the past and future concerns that each has about the matters in controversy; to identify and clarify the various interests that all parties have relating to the case and its impacts on the parties and relating to the development and maintenance of a constructive working relationship; to develop options for dealing with the concerns and accommodating the interests of all parties; to analyze and evaluate the options developed; to come to agreement on reasonable terms; and to memorialize these agreements in a written, signed document to be ratified by all parties.
Scheduling. After conferring with counsel or other representatives of the parties, the Mediator will establish a convenient date, time and place for the mediation conference. Before the mediation is actually placed on my calendar, they are to be confirmed not only by the attorneys, but also by their clients.
Conflicts Check. The Mediator will do a thorough conflict check of the parties. To the extent that he or she finds any potential conflict, he will identify these to all counsel and/or parties. To the extent that the parties wish to waive this conflict, I ask that it be set forth in the position statements (see below), as well as at the mediation itself.
Participants. Each party will designate its principal representative to the mediation. Unless alternative arrangements have been discussed, everyone whose decision is necessary for settlement should personally attend the entire mediation. This may include a plaintiff's family member, lien claimant's representative, insurance professional or an insured being defended under a reservation of rights. If you do not intend to be accompanied by the ultimate decision-maker, please notify other counsel in writing, so their clients and they can decide whether to proceed with the mediation.
Position Statements. Most mediators will request a position statement from each party to be delivered several days prior to the mediation. Ordinarily the position statement should be not more than five pages in length, and most mediators strongly encourage that the position statement be shared with the opposition. The more the opposing party understands your position, the better he or she will be able to negotiate with you. To the extent that your attorney wishes to make a portion of the statement confidential, it will be presented to the mediator in a "blind p.s." or under separate cover, and specifically marked "confidential." The position statement will normally set forth a brief recitation of the facts, the issues, the parties' positions and a candid assessment of their strengths and weaknesses, the status of the negotiations, and any suggestive creative solutions. Generally, few if any, exhibits are necessary, but if deemed appropriate, your attorney may include copies of key documents, such as relevant pleadings, motions, briefs, orders of the court, reports, photos or diagrams. This will all be reviewed prior to the mediation.
Preparation. Proper preparation is key to maximize the opportunity for a successful resolution of your case. See Tips for Successful Mediation.
Mediation Agreement. In advance of the mediation conference, the parties and their attorneys will be required to sign a Mediation Agreement. The agreement covers the nature and scope of the proceedings, the required good faith on the part of all participants, information exchange, confidentiality, and the mediator's fees.
Introductory Statement. At the mediation, the mediator ill begin with an introductory statement to all parties and their counsel. It is important that all parties understand his role and maintain reasonable expectation of how the process will proceed. He or she will outline the various segments of the mediation, and will also use the opportunity to establish a mutual respect among the conflicting parties and their attorneys.
Opening Statements by the Parties. Following the mediator’s introduction, the attorneys’ will summarize their positions using whatever means they deem most effective including, but not limited to, oral explanation, documentation and visual aids. Their intent is to clarify their respective positions for the benefit of the decision-makers in attendance, rather than "prove their case." This is a critical phase in the mediation in that the opposing party’ insurance adjuster will directly have the chance to hear from your attorney. He or she should be prepared to take full advantage of this opportunity by making points, expressing your empathy, and/or persuasively setting forth the facts and/or the law of the case. Normally, initial presentations will last between ten to thirty minutes per counsel. Participation by the parties is encouraged by most mediators, but that decision is left to the parties and their counsel.
Following the opening statement, the different parties and their counsel will break up into separate conference rooms. The mediator will begin to "shuttle" between these rooms engaging in confidential discussions (caucuses), to explore the strengths and weaknesses of the case, the possible ranges of outcomes ("jury evaluation"), the costs of prosecution or defense and any non-economic interests. He will take specific statements back to the other side, including demands for settlement, and receive authority to make counteroffers. The caucuses provide an excellent opportunity for realistic evaluation of settlement options without compromising any party's negotiating posture. These caucuses will be strictly confidential, unless the mediator is advised otherwise.
Each party and their counsel are feel free at any time to ask for their own confidential meeting outside of the mediator’s presence to confer for the purpose of evaluating and communicating their positions to the mediator so that he, in turn, may present them to the other party.
It is also important for the party clients to know that during the course of the mediation there may be a need for an attorneys caucus. This is a meeting among the attorneys and the mediator in which they will discuss legal or factual issues, or where they must identify an impasse in the mediation.
It should be understand that the first set of caucuses will usually not establish resolution. In fact, the parties’ initial positions may be "worlds apart". This should not frustrate the clients and they you should not get discouraged. You may hear the mediator say throughout the mediation, "we can obtain resolution if we simply work through the numbers and explore options," or something similar. Resolution can and most often will be obtained if the attorneys will devise a strategy for such movement. The should come to the mediation prepared to be flexible with their evaluation as well as with their strategy. The mediator will be supportive of the effort as the parties attempt to identify the parameters of settlement.
Reconvening. Ordinarily, caucusing continues until parties reach an acceptable settlement. It is not unusual, however, to reconvene a joint session before a settlement is reached, if both parties feel it would be productive to help clarify issues, clear the air, etc. Once a settlement is reached, the mediator will reconvene a joint session and summarize the terms of the negotiated agreement. Counsel or the mediator will draft and have the clients execute a stipulation containing the key terms of the agreement.
If the case is not settled at the mediation, the mediator may conduct follow-up activities. Alternatives include caucusing by telephone or in writing and/or scheduling a second mediation session.
Mediations are successful over 85% of the time. It requires preparation, realistic expectation and patience. Please give yourself the entire day without interruption. The mediator can be expected to work as hard and as long as necessary to bring the case to resolution.
[Adapted and modified by Daniel R. Denton from forms provided by Rodney Max and Robert Barrett, for publication in ADR Personalities and Practice Tips, ABA, 1998.]