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Preparing Well for Mediation

April 27, 2017

Mediation has become a primary means of resolving disputes in recent years, mostly to avoid the risk, expense and emotional drain of litigation. Mediation is not a casual encounter however:  it requires thought, presence of mind, and most of all advance preparation.

Many mediators have written about advance preparation. Many mediators have also observed, as have I, that sometimes there has not been sufficient preparation by the attorneys or their clients to make the most of the opportunity for resolution. [See related post for comparison.]

I try my best to prompt the advocates to prepare well.

I ask for mediation statements or mediation briefs. But I don’t want just legal argument. [See the related post and another .]  Instead to get to the heart of the process, I ask for these things in the cover letter I send out when convening the mediation:

• A brief summary of the factual background

• Important Points and Authorities if desired, but be brief

• A summary of the parties’ settlement history, including any dates and amounts of settlement proposals

• A statement of your client’s interests, needs, concerns and priorities regarding settlement [related post ]

• A statement of what you believe to be the interests, needs, concerns and priorities of the other parties; and

• A description of any obstacles to settlement and proposals for overcoming them. If you would like me to know something from you confidentially prior to the mediation, you may accompany the foregoing with a separate private letter to me. [See related post .]

With minor variation, this is the format utilized by the Appellate Mediation Panel, of which I am a member, at the California Court of Appeal, Second Appellate District, and I think this format is very helpful.

Of course, I ask what I ask and I get what I get. But I read everything I receive, more than once, in order for me to prepare well too.

Also, I ask that the mediation statement be shared in advance among all sides and not sent only to me, because I believe that the most important reader will be one’s opponent. If I receive the brief in confidence, I learn many things, but I can’t share the information – it’s confidential. So, if one is seeking concessions from the other side, the other side should know why (i.e., what the rationale is, what the risks are) and the best spokesperson for this is usually the advocate. [See related post .]

I also like to have advance private telephone conversations with each attorney, usually on the day before the mediation but after I have received and reviewed the mediation brief. [See related post .]

In that conversation, I can find out important things that maybe the attorney did not want to write about, particularly but not only if the mediation statement has been shared as requested.

In that conversation, I can ask:

• if the attorney has met, or will meet, with the client in advance to discuss the mediation;

• if the client has realistic or unrealistic expectations and what the attorney would like me to do to help manage those expectations [see related blog post and another ];

• if the attorney has given a realistic litigation budget to the client if the case does not settle;

• if the timing is right for mediation;

• if the right people (decision-makers) will attend in person and who else might attend and why [see related post ];

• what the attorney expects from the mediation and how to achieve those goals;

• whether there are client control issues and what help the attorney would like from me about them [see post ]

• what are the attorney’s or client’s feelings about a possible joint session and when and how that session might take place [see the related post ]

• and so forth.

Usually I send out correspondence a week or so ahead of the mediation to prompt the timely submission of the mediation statement and to arrange the above private telephone call.

Along with that letter, I also send out a useful handout from the Court of Appeal’s mediation program, which I find helpful in all mediations. I ask that the document be shared with the clients. I don’t usually know if the client actually sees it, but it is another prompt in favor of preparation.

I think about the mediation as well, well before it takes place, but mostly as a result of the input I have received in advance. Also, I like to arrive early, sometimes 30 minutes to one hour before the mediation, so I can look over the papers again, get situated in the conference room, and plan how the mediation might get started and what I will say to each side, whether jointly or separately.

Occasionally, I will stagger the arrival time if I have perceived from the phone call or otherwise that one side needs more time with me privately at the outset than the other.

Usually, if the parties and their counsel are well prepared, as I know I will be, a productive mediation will take place and maybe a settlement will even come about as a result if that is what the parties ultimately decide. [See related post .]


David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at .


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