Chapter V PREPARING FOR THE MEDIATION

• Jurisdiction: United States

V. PREPARING FOR THE MEDIATION

Edward L. Schnitzer

After parties have elected to proceed with mediation, selected a mediator and obtained a court order approving the mediation and the compensation of the mediator, it will be time for counsel, the parties and the mediator to prepare for mediation.

Preparing for mediation often involves significantly more time than the actual mediation. Preparation is necessary for both the counsel appearing at the mediation and the mediator conducting the session.

A. Advocate Preparation

For a party advocate, preparing for mediation has many facets. While mediation is not a trial, an advocate must have a firm grasp on the facts and the law before proceeding with mediation. Such knowledge is ideal, as it allows counsel to (1) address questions raised by the mediator, (2) respond to issues presented by the adversary and (3) provide quality counsel and advice to the client. In order to have this factual and legal knowledge, counsel should ideally perform a complete⁹³ investigation prior to preparing the mediation position statement and, certainly, prior to the actual mediation.

A pre-mediation investigation should start in-house and should include:

• obtaining and reviewing applicable agreements, related documents and communications;
• interviewing clients and client representatives;
• researching and understanding the applicable law;
• understanding relief sought, particularly whether such relief is monetary or non-monetary;
• understanding counterclaims or defenses raised; and
• discussing mediation logistics with the client, including availability with respect to dates and location and who should attend the actual mediation.

Depending on the discovery status of the case,⁹⁴ this investigation may also include the following steps:

• interviewing/deposing any third-party witnesses;
• serving discovery and reviewing discovery responses and produced documents from adversary; and
• deposing adversary and his or her witnesses and reviewing any deposition transcripts.

After counsel has completed the investigation, counsel should then determine:

• what, if any, facts are in dispute;
• what, if any, facts are not in dispute;
• what, if any, facts are unknown and need further discovery; and
• what, if any, legal issues are in dispute.

After doing the above, counsel should then be in a good position to analyze the strengths and weaknesses of the case. Specific preparation for any preliminary calls with the mediator and mediation statements will be discussed below. Likewise, preparation for the actual mediation will be addressed in Chapter VI.

B. Mediator Preparation

For a mediator, preparation is also quite important and can often be the key to a productive mediation.⁹⁵ One of the main differences between a mediator's preparation and an advocate's preparation is the timing.

While an advocate has likely been involved in the matter from the inception of the dispute and thus has a head start when it comes time to prepare for mediation, a mediator cannot truly prepare for an upcoming mediation until the parties supply information as to the nature of the dispute and their positions regarding that dispute. Once provided with such information, the mediator must then, on an accelerated basis, become intimately familiar with the relevant facts, applicable law, nature of the dispute, parties' positions on the facts and law, prior settlement offers (if any), and prospects for a resolution at mediation.

C. Preliminary Calls with the Mediator

While mediation statements and an in-person mediation session are certainly crucial to a productive mediation, preliminary call(s) with the mediator should not be overlooked or marginalized.

That call or calls can be accomplished in many ways. There can be a single preliminary call that involves just the mediator and the counsel for each party. There can be separate calls with each party and their counsel. There can be a combination of the foregoing whereby the mediator has one joint call, and then subsequently conducts separate calls with each party...