Each week I set aside time to gather information about the mediation process that I believe my colleagues will find useful. As a mediator and former litigation partner, I understand the issues and concerns that affect the parties and aim to be a reliable resource for all things mediation.
That being said, add this to your mediation briefs: In addition to describing the case, the legal and evidentiary issues, and any prior settlement discussions, each party should consider preparing a list of all the reasons why the other side should settle. The list should be David Letterman-like in terms of the top 10 reasons why the other side should settle. If you can’t get to 10, that’s okay, but try to get close. Preparing such a list will not only give the mediator the ammunition to assist you in bringing the numbers down but force the other side to realistically assess their case.
If you don’t prepare the list on behalf of your client, the mediator is going to come up with his/her own list. While an experienced mediator will do his best to analyze the facts and issues, he is not counsel and is not privy to all the nuances of the case. Therefore, his list may not reflect all of the reasons or an in-depth knowledge of the case as you have as counsel.
My advice: either include the ‘Letterman list’ in your brief or be prepared to provide it to the mediator in an early caucus session. It will go a long way toward producing a successful mediation.
Bruce A. Friedman is a mediator with a national practice. With years of litigation experience behind him, he understands the goals of the mediation process and will do his best to ensure that the needs of both parties are met, justly and efficiently. For more information on the mediation services that Bruce A. Friedman provides, check out his website at http://www.FriedmanMediation.com or call him at (310) 201-0010.