Pre-mediation conferences, usually conducted by telephone, are of critical importance in setting the tone and tenor of the mediation itself. They are often the first opportunity a mediator has to speak with all counsel collectively. Depending on the case, a typical checklist of items to be addressed includes:
Conflict Clearance – If conflicts have not already been cleared, the mediator should disclose any existing or prior relationships with any party or their counsel. Because I formerly practiced for 46 years as a member of a large law firm, I also ask counsel to disclose within a week whether their client has or had any relationship with my prior firm, so that all parties may make an informed judgment whether to proceed.
Current Status of the Case – Before the initial conference, the mediator should review the case docket, pleadings, and any decisions rendered to date. This material is usually readily available from the Court’s website. With that background, counsel should be asked to briefly summarize the current status of the case, including but not limited to:
a) whether any motions are sub judice;
b) whether the mediation is court ordered;
c) discovery cut-off and trial dates, if any;
d) discovery to date, including any expert discovery; and
e) whether there have been any prior mediations.
Scheduling – A date should be set for the mediation itself consistent with the parties’ schedules and any Court deadline. The actual session typically begins at 10 a.m. with the understanding that the parties should be prepared to work through lunch, and to stay beyond 5 p.m. if appropriate.
Who Will Attend – Counsel should be asked to identify the name and position of the client representative who will attend the session. It is essential that the client representative be fully familiar with the case, and possess full settlement authority. If there is insurance coverage, the carrier too must send a representative who has responsibility for the claim, as well as settlement authority. The mediation will be unproductive unless representatives with decision-making authority participate. Absent compelling circumstances and consent of all parties, in person attendance is typically required.
At this point, the mediator should also ask whether there are any other entities whose absence might impair progress at the mediation session; e.g., an indemnitor who is not a party, a third-party defendant who has not yet appeared, or a litigation finance company that is funding the suit. It is often not feasible to fill that seat at the table, but by asking the question, the mediator can more fully understand the factors that will be at play as settlement discussions proceed, and plan accordingly.
Finally, it should be determined if one or more interpreters will be needed, in what language(s), and who will provide that service.
The Site of the Mediation – The parties should confer and agree where the mediation will occur. Typically, it proceeds at one counsel’s office or the courthouse, if suitable space is available there. One large conference room, and one or more break-out rooms will be required.
Is there a Need for Informal Discovery – This subject is of special import when the case to be mediated has only recently been filed, and no discovery has been completed. In these instances, it is typically in every party’s interest to provide its adversary with expedited discovery in the form of an informal information exchange, as well as a limited document production to the extent necessary to prepare for the mediation. Many Courts which compel mediation soon after issue is joined have promulgated rules defining what information should be exchanged between the parties before the mediation occurs. The schedule set by the mediator should ensure this information is provided sufficiently in advance of the mediation to allow adequate preparation time for all parties.
A potential concern even in older cases is whether each party has a sufficient understanding of their adversary’s damage calculations. If not, there should be consideration of what steps can be taken to ensure this occurs prior to the mediation.
Mediation Submissions – The mediator should address the timing, length, and substance of the submissions to be made in advance of the first session. The parties should offer their views on whether these submissions should be exchanged or served only upon the mediator. The former is the norm and should be the default rule absent special circumstances.
Typically, these submissions should be 10-20 pages in length, and focus on the core issues that will be discussed at the mediation. They should also briefly set forth the legal authorities that govern the case. Rather than require counsel to reinvent the wheel, if the case has already been fully briefed on a dispositive motion, the previously filed motion papers can substitute for or supplement the legal section of the mediation statements.
If the mediation briefs are to be exchanged, then each party should make a separate confidential submission to the mediator, addressing: a) past settlement negotiations; b) the client’s current settlement position; c) the value-drivers in the case; d) any obstacle that has prevented earlier settlement; and e) any non-economic terms that may facilitate a resolution.
Finally, the parties will be asked to collectively submit a joint binder containing any documents they wish the mediator to review in preparation for the mediation. These documents can include the relevant agreements, communications, transcripts, and court papers.
Opening Statements – The mediator should solicit the parties’ views on whether opening statements by counsel at the outset of the mediation would be productive. In my experience, when dealing with commercial disputes involving sophisticated parties, especially when in-house counsel are participating, the parties typically prefer to waive opening statements. In these circumstances, each party already understands the fact and legal issues, and there is little emotional stake in the case. These cases are the exception to the rule, however. When one or more of the parties are unsophisticated, are suing or being sued in their individual capacity, or when the mediator believes a client or carrier representative may not sufficiently familiar with the issues, dispassionate but complete opening statements become even more important.
Any decision on whether to utilize opening statements at the mediation should be tentative, and the issue should be revisited a week before the mediation, after the mediator has reviewed the mediation submissions and had an opportunity to speak to each party ex parte. (The nature, substance, and purpose of these pre-mediation ex parte discussions between the mediator and each party will be addressed in my next blog.)
Other Issues – The conference ends with an invitation to counsel to raise any other issues that they believe should be addressed. The intent is to ensure that the parties assist the mediator in arriving at a process that is fair and complete, ensuring there will be no surprises as the mediation proceeds, that might deter settlement.
Joe DiBenedetto recently retired from Winston & Strawn LLP, after spending 46 years in its Manhattan office as a capital partner specializing in commercial litigation. He formed JDB Mediation LLC to further develop his mediation and arbitration practice, which is centered in Manhattan and its surrounding counties (including Westchester, Nassau, and Suffolk). Joe DiBenedetto’s experience, training, and other credentials are more fully described at www.JDBMediation.com