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.


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 an approach to dealing with the causes and possible resolutions of the dispute, contact counsel with questions or concerns and do other preparation.

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.  I try to determine in advance of the mediation whether counsel are going to make an opening statement and whether they have concerns about other parties makeing opening statements.  I see opening statements done about half the time, and am ambivalent on whether they should be done.  I may 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 initial separate caucuses, I ask the parties to tell me in their own words what happened.  While the carthartic benefit is important, I think it is even more important for the parties to know that I have listened very carefully to them.

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.

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.


I use a number of different "tools" in mediations as appropriate, including the following:

Benefits of settlement lists: Usually by the second or third causus I will put large post-its on the wall and use them to develop a list of the potential benefits of settlement.  I usually draft the lists but I invite the parties to add or alter the lists.  Frequently developing these lists helps me and the parties to identify the most important interests that are beneath the surface of the dispute.  Towards the end of a mediation these lists can be very useful in showing the parties that although the monetary amounts may be much different from their initial expectations, settlement would substantially satisfy important interests.

Demand/Offer charts:  Posting a simple chart of the demands and offers helps avoid confusion and waste of time.  It reminds the parties of where they have moved from and helps point out where the negotiations may lead.  The demands and offers can be annotated with midpoints.  The benefits of these charts outweigh th rist the parties may get stuck in "positional" based bargaining.

Responding to an "outrageous" initial demand or offer:  If a party perceives the other party's initial demand or offer is a complete "non-starter", the party may refuse to couner or else decide to counter with an unproductive move.  To deal with this kind of situation, I may ask the second party what would they have expected as a reasonable demand or offer, how would they have responded to it, and why not just do it now?  They can always "put on the breaks" later.

Counsel's explanation of a hypothetical bad result:  As enthusiastic as counsel may be about their case, I often find it useful to ask counsel to assume that the case gets arbitrated and results in a bad award.  In that hypothetical result, what would counsel tell their client as to how that result could have happened?  Since parties probably trust their own counsel more than me, the process can be a good "reality check".

"Times ten" results chart:  When there seems to be a disconnect between a party's analysis of the case and their negotiating posture, I may ask them to assume their exact same case was arbitrated or tried ten times.  For claimants, I will put on a large post-it a row showing in ten columns what they think the award would be.  The next row shows the expected costs to get to the award.  The third row shows the ten net results.  Often, the chart will show that the average expected result is much less than the party's best guess as to the single most probable result.  Also, the charts frequently show that in a significant percentage of the columns, the expected net result is less than the average.  For claimants who should not be taking significant litigation risk, the chart can be very helpful in their readjustment of settlement expectations.  For respondents, the charts are a little different in that the fees and costs to get to an award are added in each column to the expected result.  The respondent charts often will show that the expected average result is significantly higher than the single most probable award.  Most of the time I do not need to substitute or add my own best guesses as to the range of awards, but it is easy to switch to an evaluative mode and add my best guesses where appropriate.

"Bracket" demands and offers:  While not all counsel like them, I have found that bracket, or conditional, demands and offers often are productive where it seems the parties are still far apart after many rounds of demands and offers.

"Bookends/Reframing":  Sometimes I will propose that the parties reframe the negotiations with specific demands and offers suggested by me.  For example, if the parties have gone through two rounds of bracket demands and offers, it may make sense to recognize that realistically the gap between the parties consists of the difference between the mid-point of the claimant's last bracket demand and the mid-point of the respondent's last bracket offer.

"Confidential listener":  If I think an impasse may be imminent, I may suggest that each party tell me, absolutely only for my knowledge, what the party's last or maybe next to the last position will be.  I then can decide whether it makes sense to continue the negotiations.  

Mediator's proposal:  I try to avoid them for a number of reasons, but sometimes the only apparent way to avoid an impasse is the mediator's proposal process.  If the parties want to use this process, I first remind them that a mediator's proposal is my best guess as to the single number that has the highest probability of being accepted by both sides.  Parties often get it confused with an early neutral evaluation, which is a neutral's best guess as to the most likely outcome of a trial or arbitration.  I ask that the parties remain while I draft the proposal, so that when I deliver the proposals I still have an opportunity to speak directly to the parties about the advantages of accepting the settlement proposal.  Recently I have suggested, and the parties have agreed, that the time limit for accepting the proposal is as short as 15 to 30 minutes, with me remaining on the premises.  Typically the proposal might look like the following:  Terms -- Respondent shall pay $__ to claimant by [date].  Each side shall bear its own fees and costs.  The parties shall sign a settlement agreement that includes a broad release and a confidentiality clause.  Process/Conditions -- The parties have until [time and date] within which to accept this proposal.  If both sides do not timely accept, there will be no settlement per this proposal.  If a party does not time accept, I will not tell that party whether the other party accepted.


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 in mediations done on a flat fee.

Combined Mediation/Arbitration procedures

I have done a number of combined mediation/arbitration processes.  I am not a fan of them, but there does seem to be an increased interest in them.  There is no such thing as a "binding mediation", as a primary tenet of mediation is self-determination at all stages.  Statutory and case law do support combined procedures, but the advance, written agreement needs to clearly state that if the mediation fails, the neutral will use all information gained in the mediation to make the arbitration award, including information gained in a mediation private caucus.  The combined process may result in radically different dynamics in the mediation state.  There may also be statute or court rules regarding whether if the mediation fails, the partes have the right to require a different neutral to conduct the arbitration stage.  if so, that might diminish the desired speed, increase the cost and delay the finality of a combined process.


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