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Palos Verdes Peninsula, CA 90274
Fax: 310-265-0428 |
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Mediation Process
I generally conduct mediations per the following discussion. Mutual consent of course is required for the entire process, which will vary as necessary for a particular dispute.
Convening Stage
My involvement in a mediation usually begins with a joint retention by counsel, but I am pleased to act on one party's request for me to invite the other side to mediate. I am also willing to do the telephone calls/emails necessary to set the mediation date. You can view a copy of my calendar by clicking on the Google Calendar link on the Calendar page.
Submissions
Unless the pleadings have relatively detailed factual allegations and state the major legal contentions, I strongly suggest that the parties exchange among themselves and provide me with briefs. The briefs can be in any form (letter, email, pleading, memo) and should lay out the facts and relief sought, discuss any unusual legal issues and describe previous settlement discussions if any. I encourage the exchange of briefs, if the pleadings do not tell the factual story, because I think the exchange hastens the critical "education" process. Sensitive material or matters that must remain confidential can be provided me by private letter or email. In securities cases I urge the parties to exchange and reconcile profit and loss analyses, where possible, so that time during the mediation is not wasted.
Release and Settlement Agreement
Usually I ask the defendant's counsel to draft and bring a shell release and settlement agreement.
My Preparation
While I can "wing it" at the mediation, the parties are better served if I get the submissions several days before the mediation. I can then develop a strategic approach to dealing with the causes and possible resolutions of the dispute, contact counsel with questions, draft a summary of each side's positions and/or a summary of the apparently undisputed facts and script key questions.
Attendance at the Mediation
I strongly encourage personal attendance at the mediation of all required decision makers, as the dynamics and probability of success are greatly improved by personal attendance. Where that is not possible, I urge the parties to have required decision makers available by telephone.
The Mediation Session
General session. At the mediation I invite counsel to make opening statements unless a determination has been made that they would be counterproductive or a waste of time. I also invite the parties to add any comments they want to share at that time. I may supplement the opening statements with my summary of the parties' positions and/or a recitation of the apparently undisputed facts. Most, but not all of the time, I then separate the parties into two or more caucuses. In document intensive cases with multiple parties, I may extend the general session to discuss what the documents establish.
Separate caucuses. In the separate caucuses, I will have a dialogue with the parties as well as their counsel. I think it is important to try to identify the interests that underlie the parties' positions and not get stuck in preconceptions about what has driven the dispute or what might be possible resolutions.
Styles. I use a combination of facilitative and evaluative styles. Generally I try in the first caucus with each party to make sure I understand their story. Later when discussing a party's evaluation of their case, I will not hesitate to share whatever concerns or contrary views I might have regarding the party's case.
Evaluation tools. In discussing a party's evaluation of their case, I often draft three simple tables that lay out the net result, after factoring in unrecoverable costs, for the party's reasonable best result, their reasonable worst result and their most probable result. Sometimes I use a similarly constructed chart that shows what the net result would be each time if the case were to be tried or arbitrated 10 times. I also may use decision analysis trees in connection with evaluating a party's case. They are an excellent tool for logically factoring the cost of going forward, the many layers of probabilities and the range of probable damage awards. I have decision analysis software on my laptop to speed the drafting of the trees and use a portable printer to provide copies to everyone in the caucus.
Coaching the negotiations. Although some parties and counsel make all their own decisions regarding initial and/or successive demands and offers, most appreciate and expect some level of guidance. Whether or not guidance is requested, if I think a party's demand or offer will be counterproductive I clearly state what I think would be more productive.
Session length. Most parties and their counsel have the expectation and hope that their disputes will get resolved on the day appointed for the mediation. To that end, I do not schedule mediations for days when there would be any business or personal matters that would prevent me from going as long as the parties are willing and capable in order to get to a resolution.
Release and settlement agreement. When the dispute is resolved, I strongly encourage the parties to sign an agreement that would be sufficient at least to support a motion for judgment should one party fail to perform. Often, one party's lawyer will bring a shell agreement that can be filled in and modified as necessary, either on their or my computer.
Follow-Up
If a settlement is not reached during the mediation session, I continue to work for a resolution as long as the parties are willing until a settlement is obtained. There is no charge for this work, as it is included in my flat fee.
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