Prior to getting the mediation statements, I usually know nothing about the dispute other than the names of the parties and lawyers. I haven’t received the complaint or spoken with counsel. Since I’m a blank slate, mediation statements and exhibits are a good way to get me up to speed quickly. And having mediated for over a decade, I’m a quick learner. That’s why I recommend you limit it to 5 pages and I ask that the statements be exchanged.
What I’m looking for is:
- A few introductory sentences about the dispute (i.e. “Plaintiff X was wrongfully terminated from their job as a soccer coach for doing [protected activity]” or “Plaintiff X and Defendant Y started up NewCo together after graduating from UC Berkeley [Go Bears!]. A year later, the company had financial problems and NewCo’s investors conditioned further investment on X leaving the company. X is now suing that he was wrongfully forced out.”)
- List who will be attending the mediation from your side and their title/relationship to the matter. I highly encourage you to bring junior attorneys to the mediation so they get exposure to the process, especially if they’ve been working on the matter. They can stay for a portion or all of the session.
- Describe briefly the substance of the claim, addressing the party’s views of the key liability issues and damages and discussing the key evidence;
- Describe the history and status of any settlement talks;
- Identify what else do I need to know (any needs, interests or other considerations); and
- Include copies of documents likely to make the mediation more productive or to materially advance settlement prospects (only the key docs and highlight or somehow indicate the important sections). Separate the docs into separate files and give them descriptive names like, Ex. A 2020.5.8 Engagement Letter.
Please don’t submit your complaint or MSJ as your mediation statement.
Prior to the formal start of the session, I hold a mediation prep call with counsel where we go over logistics, confidentiality (anything you share with me, I can share with the other side and vice-versa; unless there’s something you want me to keep confidential).
At the mediation, you and your client should be prepared to answer the following:
- What are your goals: big and small? Think about what you need short of a full settlement. For example, one party just wanted to get a demand. Another wanted information about insurance coverage. Yet another wanted an efficient discovery plan if complete settlement wasn’t possible. One just wanted to be heard.
- What is keeping the case from settling? And no, saying the other side is being obstinate is not really an answer.
- What ideas do you have to overcome them?
- What needs of your clients must be met in order for a resolution to be reached?
- What needs of the opposing party must be met in order for a resolution to be reached?
- What are the consequences for each side if no settlement is reached?
- What is your estimated budget through trial?