The parties seek mediation for the purpose of attempting to fully resolve their dispute without having to engage in the uncertainty and expense of the judicial trial process. Like any other endeavor of importance, thoughtful preparation is often the key to success in securing the best results. Mr. Jones always fully prepares in advance for each mediation session. This preparation includes thorough review of the parties’ mediation statements, including all supporting materials, and research on the current controlling case law and recent awards related to the issues in dispute. Likewise, all parties must prepare to come to the session ready to fully present all relevant legal arguments and supporting facts as well as reasonable assessments of the damages being sought for each claim made.
All participants should also come prepared to listen to, and fully consider the positions of the adverse parties. They should, at all times, keep in mind that there is no trier of fact present that they are trying to convince to make any final decision with respect to their legal rights in the dispute. They are simply trying, in a professional manner, with the assistance of the mediator, to reach a voluntary binding agreement with the other side that both parties can accept to finally resolve their dispute.
Well prepared mediation statements that focus on the relevant facts and evidence, are of great value in helping the mediator and opposing parties understand the basis of the dispute as well as any unique legal arguments and cases that the parties contend support their positions. It is generally helpful that these statements be exchanged with the other parties in advance of the mediation session so that they will have the opportunity to more fully understand and consider the other parties’ position, and may be able to see where the participants agree on some of the basic underlying facts of the case. However, it is understood that the parties may have information and arguments they believe should be shared with only the mediator. All parties are therefore encouraged to exchange with the other parties, whatever information they believe will be helpful. They can then provide any additional confidential information by way of a “Confidential Supplemental Statement” to the mediator only.
Of course, if a party does not want to exchange their mediation statement with the other parties, they may submit their Mediation Statement to the mediator only with a clear notation on the first page that it is to be “Confidential to the Mediator Only.” Mediation statements should be limited to no more than 15 pages, exclusive of any supporting documentation. Mediation Statements should be provided to the mediator at least seven days prior to the date of the mediation session. The parties may also bring to the session any additional supporting documents they believe may be helpful in the resolution of the dispute.
Proposed Settlement Agreement
While not required, it is strongly recommended that prior to the mediation session, defendant's counsel prepare and send to opposing counsel, a draft settlement agreement and general release that contains the basic terms and conditions that defendants believe will be necessary for reaching a final settlement once the major disputed issues are settled. This should prevent any surprise late in the negotiations as the parities are attempting to negotiate an enforceable final agreement or agreed upon term sheet.