As a mediator, I can do a better job helping you settle your case if you tell me these 6 things. Most mediators are happy to read the information in advance (I know I am), or you can lay it out during the opening conference.
1. The basic facts
You have lived with the case for years, but as your mediator, I am new to it. The more context you can give me, the faster I can understand the arguments you are making. I am happy to read the Complaint or Answer, a demand package or response, an incident report, summary judgment brief, etc.
2. Bad blood
The parties may have entered the litigation angry at one another. Or, after years of arguing with each other as they represented their respective clients, the lawyers may have reached the point that they no longer get along.
Mediation is about settling the case — not the score. If the parties or the lawyers have gotten crosswise with one another, I would like to know that before the mediation starts. I may be able to defuse some of the hostility by changing the seating or by shortening or even eliminating the opening conference.
Of course, the best way to end the feud is to settle the case, which means we all need to figure out a way to keep the hard feelings at bay while we work toward settlement.
3. Areas where the parties agree
If the parties agree on certain facts or issues in the case, by all means let me know up front. In fact, in most cases the parties do agree on some key facts; sometimes they even agree on large segments of the case.
For example, in an auto wreck lawsuit, the parties may agree about how the wreck happened and even who caused it. The only dispute may be about how serious the plaintiff’s injuries are. On the other hand, in a medical malpractice case, everyone may agree that a child has serious and permanent brain damage, but they may vigorously disagree about whether the injury occurred during the birth process due to a failure to perform a C-section in a timely fashion.
If I know what the parties agree about, we can narrow the focus of the mediation to just the areas where the parties do not agree.
4. Areas where the parties disagree
Of course, the reason the parties have come to mediation — in fact, the reason they had a lawsuit in the first place — is that they do not agree on all of the facts, the law, or the damages. Before or at mediation, I need to learn what these disputed areas are. We will spend most of the day discussing these issues.
5. What law you think should apply (if disputed)
Although the parties usually agree about what law is going to apply in the case, occasionally the parties will have a serious disagreement about what the law is. These disputes are especially likely in areas where the law has undergone significant changes in recent years. For example, Congress amended the False Claims Act in 2009 and twice in 2010, so the law in the area of qui tam/whistleblower cases is less settled than the law that applies to many other types of lawsuits.
I can be a better mediator if I understand what each side thinks about what law or legal standard should apply. It will help me if you send a key case, a statute, or a section from a brief you have written.
6. Previous settlement discussions
It also helps me to know what settlement discussions have taken place so far. Knowing where things stand can help me formulate a plan for how to organize the day efficiently, which is particularly critical in multiparty cases.
By giving your mediator the right information, you can increase the chances that your mediation will be successful.