November 01, 2018 Articles

The Path to a Successful Mediation

While litigants may have had a contentious relationship prior to mediation, they need to prepare for mediation with a view toward ending the litigation by agreement.

By Sally Shushan

I believe that one of the surest paths to a successful mediation is to have a prepared mediator—one who knows the facts and the issues well in advance of the mediation session. I usually ask for written submissions 10 to 14 days prior to the mediation session. I don’t do that to torture the attorneys, but rather to be prepared. I read the submissions as they come in and make note of any questions that I have. I then have time to call counsel and discuss issues prior to the mediation. It might be something the attorney has not thought of or something I don’t understand. Either way, we gain clarity and don’t spend time at the mediation covering those things.

I include my mediation memo below, covering submissions and client authority as well as the mediation checklist that I ask the parties to comply with for the mediation session.

Having the parties make submissions in advance and my having the opportunity to read them and discuss issues prior to the mediation greatly increases the chances of a successful resolution.

In conclusion, I view mediation as a collaborative process.  While the parties and the attorneys may have engaged in contentious litigation prior to mediation, they need to prepare for mediation with a view toward ending the litigation by agreement.  Make sure your client understands the difference in process and the fact that settlement is usually in the client’s best interest.  Good luck!


 

Memo Regarding Mediation Session

A mediation session is scheduled in the above-captioned matter on _____, _____ , 2018 at ____:00 a.m. at _________________, New Orleans, Louisiana.  Prior to the session, the plaintiff is to have made an offer and defendant a counter-offer.  Please see attached mediation checklist.

On or before noon on ____________, each party should submit to the mediator an in-camera letter/memorandum in native pdf (not scanned), NO LONGER THAN SIX PAGES DOUBLE SPACED, briefly outlining the dispute, the damages, important rulings, pending motions, the value of the case and what realistic amount the respective party would be willing to offer/accept to settle this matter. The letter/memorandum should be emailed to sallyshushan@gmail.com.  It is important that the party representatives who attend the mediation session have adequate discretion, authority and information to resolve the dispute.  If a party representative cannot comply with this, it is imperative that you notify me and all parties as soon as possible.  If a party representative cannot attend the session in person, and the other parties agree, that person may participate by telephone and should be available during the entire session.


 

Mediation Session Checklist

Be prepared. Know your case.  Prepare your submission to the mediator after reviewing your file, discovery, expert reports, etc.  Keep your submission clear, concise and without superfluous argument.

Know if there is an intervention or a lien.  In your written submission tell the mediator how much it is and what categories it breaks into.  Speak to the intervener/lien holder before the conference to make sure your information is up to date and commence negotiations.

Make sure all medicals and expenses are updated and all other applicable information shared with counsel prior to the conference.

Remember that parties need time to react to new information, for example new medicals.  Parties should have full information to evaluate the case several weeks before the mediation, which enhances the ability to get settlement authority.

Settlement authority. Well prior to the settlement conference you should provide your client with your frank case evaluation (not just what you intend to put in the settlement memo addressed to the mediator). Based on the evaluation, obtain realistic settlement authority. This need not be disclosed up front to the mediator, but having authority will speed up the mediation process.

Limit attendees. Every case does not merit having two or more attorneys per party and a client representative appear for the settlement conference.  If a partner and an associate are working on a case and it is not a high dollar value case, send the associate. She knows the facts and it is good experience for her.  If group size is limited, the mediation is more likely to be successful.

Keep posturing to a minimum. Starting at $3 million when you know that the case is worth $500,000 does no one any good; The same applies to defendants who offer $5,000 when they know they will pay much more.

Exchange settlement offers. The mediator prefers that the parties make offers and counter offers before the mediation session.  If possible, exchange two rounds of offers.  This gives everyone a running start.   

Sally Shushan is a former U.S. Magistrate Judge and is a founder of Duval Shushan Legal Resources, located in New Orleans, Louisiana.

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