procedures before and during mediation

I encourage the parties to provide information about the case in advance of mediation.  Although a phone call is welcome, I find I am better informed -- and thus more able to be effective as your mediator -- when I receive written submissions that contain at least the information discussed below.

I request that any submissions be received at least 48 hours before the start of mediation, unless the court requires earlier submission.  Please send them to jim@matulislaw.com

I am sometimes asked what should be included in a pre-mediation submission.  In addition to your analyses of the case merits, including both the facts and the law, I find it helpful if you can share with me information on the following specific topics: 

(1) the names and titles of all parties attending mediation, 

(2) status of the case is in terms of discovery, 

(3) whether there is any basis to collect attorneys’ fees, 

(4) applicable insurance policies and reservations of rights letters, 

(5) copies of any damage analyses and expert summaries, 

(6) the history of any negotiations to-date, and 

(7) any actual or perceived impediments to settlement unrelated to the merits of the case of which you are aware -- on either side.

Please specify which portions of your submission contain information that is not to be shared with the other side , if any, absent client consent.

Also, be sure to read any applicable case management orders or rules issued by the court in your case (see links below), as they may vary from these requirements.  

For example, some judges (or jurisdictions) require two sets of submissions:  one to be provided to the opposing party that sets forth the facts and law as counsel sees it, and a second that is provided submitted only to the mediator that includes confidential information that should not be shared with the adverse party absent counsel's permission  during mediation.  Although this "two-statement" approach is viewed by some as more time-consuming for counsel, it does assure  that the other side receives an unvarnished view of the case.  As a result, you may wish to follow this approach even if the court does not require it in your case.  

PRO TIP:  If you decide (or are required by the Court) to serve a copy of your mediation statement on opposing counsel. but you also have confidential information to share with the mediator only, then do this: (1) draft the version to be shared and send it to opposing counsel, then (2) supplement it with "mediator's eyes only" information -- preferably in a different color or font -- and then send that to your mediator. This process cuts down on the work and also lets your mediator know at a glance what has been shared with the other side as well as what is for the mediator's eyes only.

 I will schedule a separate call with each side’s counsel to occur in advance of mediation. I find them to be most productive after I have had a chance to review any written submissions, so will reach out to your office as mediation approaches.

I encourage counsel to coordinate with opposing counsel to decide whether opening statements will be presented. Ideally this should happen at least a week in advance, so that if the decision is made to forego opening statements, neither side will spend time preparing one.

I am happy to convey all information each side would like during mediation, as in some instances the parties may have such an adversarial relationship that opening statements delivered by counsel for the opposing party can be counterproductive. I regularly receive feedback that I am good at delivering the other side's "hard news" in a way that allows the message to be heard without ruffling feathers.

Keep in mind that under the rules of self-determination that apply to mediation, no party can be forced to listen to an opening statement from counsel for the adverse party if they do not wish to hear it.

I encourage the parties to draft term sheets or settlement agreements in advance of mediation, such that they can be sure that they have addressed all of the terms that may be required or desired at mediation, and also because they can be quickly modified if resolution is reached.   

Often during the course of mediation, I become involved in the preparation or modification of settlement documentation. Any documents drafted in whole or in part by me are, of course, subject to review, revision and approval by counsel for the parties. Any drafting service or assistance I provide does not constitute the rendition of legal advice and should not be viewed as me having a representative relationship with any party involved in the mediation.