Written by Lee Wallace,
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 that 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 Complain or Answer, a demand package or response, an incident report, summary judgment brief, etc.
2. 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 cause 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 suffered serious and permanent brain damage during the birth process, but they may vigorously disagree about whether the doctor performed a C-section in a timely fashion.
3. 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 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.
4. 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 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 more traditional lawsuits.
I can be a better mediator if I understand what each side thinks about what law or legal standard should apply. I am happy to read a section from a brief you have written, or a key case or statute.
5. 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. For example, after the opening conference, I typically like to start the private conferences with the party that has not yet responded to the last offer or demand.
6. 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. 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. Mediation is about settling the case – not the score. 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.
By giving your mediator the right information, you can increase the chances that your mediation will be successful.