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Mediation is now a well-accepted part of the legal landscape. Many contracts require mediation before litigation can be instituted and many judges, including most judges on the civil bench in Maricopa County, require parties to a lawsuit to participate in a settlement conference or private mediation before trial. Yet, despite the importance of mediation, many clients arrive at mediation ill-prepared and with only the most basic concept of what is to occur. Lack of preparation can frustrate the basic purpose of mediation, which is generally to reduce costs, eliminate extraneous issues, and foster resolution of disputes.
These six simple “rules” can help increase the likelihood of a meaningful mediation.
1. Learn about your mediator. Mediators, like all people, have different traits and styles that they bring to mediation. In order to keep yourself from being caught off guard, do what you can to familiarize yourself with your mediator’s style. It is a good idea to know advance if the mediator can be expected to play devil’s advocate, push hard on the perceived weaknesses of your case, or quickly drill down to dollars at issue with little regard for legal or factual issues. If you enter the mediation with a good understanding of the mediator’s style, your communications will go more smoothly and you will be better able to guide the mediator to the issues that are of greatest concern to you.
2. Review your mediation memo. You and your attorney likely spent a good deal of time and thought preparing the memorandum provided to the mediator. Often, however, those memoranda are prepared weeks, if not months, before the mediation takes place. Be sure to review your memorandum shortly before the mediation occurs to make sure your positions on the issues have not changed. If new facts, evidence, or case law relevant to your case have come to light in the time since the mediation memorandum was provided, be prepared to address any changes with the mediator at the outset of the mediation.
3. Review your Opponent’s Memo. I always recommend that my clients review the opposing party’s memorandum if it is available. Again, this eliminates surprise and allows you to enter the mediation process with full knowledge of the other party’s position and any assertions that might be made particular to you. Importantly, if the opposing party’s memorandum is insulting or inflammatory, reading the memorandum beforehand not only allows you to be as prepared as possible for what may be said in the mediation, it also allows you time outside the mediation conference to get over any hurt feelings or anger, allowing you to better focus on the matters at hand during mediation.
4. Make sure you have the necessary documents/evidence with you. It never fails to surprise me how parties fail to provide the mediator with copies of documents they claim are critical to an understanding of the issues or case being mediated. While parties should avoid burying the mediator in irrelevant materials (remember, you are paying for the mediator to review materials submitted), it is important that the mediator be supplied with whatever is necessary for her to understand the case and conduct an effective mediation. If there are ancillary documents that may become relevant, take copies of them with you to the mediation. Nothing will grind progress in a mediation to a halt more quickly than having to wait while documents are located off site and delivered to the mediation. Moreover, never assume that the other side will have the documents you think might be important available.
5. Have a game plan. You would not want your attorney to go to trial on your behalf without a firm plan in mind. The same should be true of mediation. The big difference, of course, is that in mediation you are able to play a much bigger and much more vocal part in the proceedings. Talk with your attorney beforehand about your approach in mediation. Find out what your attorney will want you to address with the mediator and be prepared accordingly. By the same token, find out if there are any issues that the attorney wants to handle, be prepared to step back and remain quiet. By taking the time to discuss your respective roles, both you and your attorney will be more effective.
6. Be willing to jettison your game plan. The old saying is that no plan of battle survives engagement with the enemy. This is especially true in mediation, where a skillful mediator will work to address issues and problems with creative solutions. While it is unlikely you will want to abandon your end goal, it is important not to be so tightly bound to any plan or position that you foil the mediator’s attempts to bridge the parties’ differences. Flexibility is important. It is not possible to cover all aspects of mediation briefly. Nonetheless, following these simple “rules” can help ensure that your mediation is, if not successful, at least worthwhile.
It is not possible to cover all aspects of mediation briefly. Nonetheless, following these simple “rules” can help ensure that your mediation is, if not successful, at least worthwhile.
Andrew Turk is a Senior Attorney at the law firm of Clark Hill, PLC. He has been providing assistance to clients with healthcare and business litigation needs for more than 20 years. Mr. Turk has also been serving as a volunteer settlement judge, mediator and arbitrator for almost 15 years. He is the author of the chapter on mediation and settlement conferences in the Maricopa Litigation Guide, scheduled for publication in Spring 2015.