March 06, 2013 Practice Points

Mediators Take Sides: Do's and Don'ts from Top Mediators

By Teresa M. Beck

Mediation can be extremely useful and often helps parties to settle disputes that seem incapable of resolution without protracted litigation. But mediation can also be a fruitless exercise, if it is not approached correctly. Recently, several experienced mediators were asked to provide insight regarding common lawyer strategies that both facilitate and inhibit successful mediation.

Things Lawyers Should Do for Successful Mediation:

Exchange mediation briefs. Many lawyers produce confidential mediation briefs to the mediator but do not share their mediation briefs with opposing counsel. This can result in a situation where one or both parties have a deficit of knowledge regarding the relevant facts or law. Lawyers seeking to share truly confidential information with the mediator might instead consider producing any private information with the mediator in a side letter, while exchanging mediation briefs with their opponent. This way, all parties are working with the same facts and law, and any “knowledge deficits” can be addressed before the mediation.
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