How to prepare  |  At the mediation

1. Set aside the full day
Mediation is a process and it takes time. The attorney and the party should set aside the entire day for the mediation. Outside distractions should be kept to a minimum. There will be plenty of opportunity to call your office or home through the day. The fax machine is available for incoming or outgoing faxes when the mediator is not meeting with you. It is best not to make evening dinner plans, flight reservations, or plans to take in a ballgame the day of the mediation. No one should be pressed into settling or not settling because of an engagement away from the mediation.

2. Review the facts of the case
Every lawsuit is based upon a series of events that culminated in the dispute that is the subject of the court case. The attorney and the party should be prepared to discuss the facts of the case with the opposing side as well as with the mediator. To the extent that the particulars of each event might be relevant to the lawsuit, the lawyers and parties should be familiar with the witness statements, depositions, documents, and exhibits that will be used to prove or challenge each material fact that supports a claim or defense to the lawsuit.

3. Be prepared to discuss the strong and weak points of your case
Mediation is risk analysis. Through the mediator the parties compare their cases against the probable outcome at a trial on the merits. This analysis requires each side to confidentially and honestly review the case -- warts and all -- with the mediator. The perfect case is rare. In most instances, each side has or perceives some justification for an event leading to the dispute. Every case is subject to legal or practical problems that may impact the outcome of a trial. Mediation provides a confidential and realistic review of a case.

4. Consider the costs
Lawsuits are driven by dollars.

5. Bring copies of important documents
Pictures and documents can be effective settlement tools. There are no rules of evidence in a mediation so if there is something you think will help the other party understand your position, bring it with you. For example, copies of time cards, check stubs, photographs, emails, and bank statements can help demonstrate graphically what the other side will need to face if the case does not settle. Copies of relevant cases – including a copy to give to the other side for its candid consideration – can be a useful tool in helping each side assess its risks. Likewise, a financial statement, insurance policy, or a prior judgment or lien may prove useful in a mediation though it might be inadmissable as evidence at a trial. Bring enough copies for the mediator and the other side to use together.

6. Make sure the client or representative has authority to settle
The people at the mediation should have the authority to settle the case. They are the people who will have gone through the process of hearing the other side and the back and forth of settlement negotiations. So, if someone is needed to make a decision, he or she should be present. For example, an individual party who wants his or her spouse to help make a decision should bring the spouse to the mediation. A corporate party should be represented by an officer. A partnership should be represented by a partner. The person present at the mediation in most instances should not have to refer to someone who is not in attendance for permission to settle. If it is not possible for a decision-maker to be present, he or she must be accessible by telephone throughout the mediation process.

7. Bring a positive attitude
Agreements created by the parties provide far better solutions than judgments imposed by judges and juries, which may not even be enforceable or collectible. Therefore, the effort put forth at mediation should be the same as that put forth at a trial. Bring to the mediation an open mind and a willingness both to listen and to compromise. If you do not like the other side’s final offer, you can do not have to settle and you can proceed with the litigation.

8. Prepare a memorandum for the mediator
A few days prior to the mediation, send a confidential memorandum to the mediator outlining your case. The purpose of the memorandum is to acquaint the mediator with the type of case and where appropriate the underlying law supporting each side’s claims. The memorandum should include enough of the underlying facts to give the mediator an idea of what you expect to prove at trial. It should also include any information that you believe might be helpful to the mediator in understanding your case and you should use the memorandum to address any concerns you might have concerning your case or the mediation. It should be no longer than 4 to 5 pages.

9. Prepare an opening statement
The mediation will begin with a joint session. The lawyers, parties, and the mediator will sit around a conference table and each side will have the opportunity to present its version of the facts and law of the case at issue. This opening statement is for the other side – not the mediator. It is probably the only chance that each side will have before trial to talk directly to the other side. Each side should use this opportunity to show the other what it will be facing at a trial on the merits, including best case and worst case scenarios as to outcome. The opening statement sets the tone of the mediation and when done well, insures a successful resolution of the mediation.

Mediation is a day long process that allows parties to a lawsuit to settle their differences without court intervention. The mediation process is different from the court process because in mediation the parties work together to come to an agreement through compromise. In a court proceeding the parties compete before a judge or jury for a determination of a dispute, i.e., a statement from the court that one party is right and the other is wrong.

When you arrive
At the St. Louis Mediation Center when the parties arrive, they are immediately escorted to their own conference room where they will be based for the day. In each conference room snacks, drinks, telephones and wireless internet are provided for the use of the party and attorney. Prior to commencement of the mediation the parties will have the opportunity to confer with their attorney and the mediator. Mediator fees will be collected.

The Joint Session
Once everyone has arrived and the parties have had the opportunity to talk things over with their lawyers the joint session will begin. All of the parties and their attorneys will meet together in one conference room and discuss the issues that are the subject of the lawsuit. The mediator will begin by introducing all of the participants and explaining the rules of the mediation. The parties and their attorneys will be told about the confidential nature of the proceedings and each person will be asked to confirm that he or she is willing to use his or her best efforts to compromise the lawsuit and that there are no time constraints that might impact upon the process. The mediator will also verify that the persons present have the authority to bind the parties to the lawsuit.

The Opening Statements
The joint session begins with a statement by the plaintiff’s attorney describing why the lawsuit has been brought against the defendant(s). There is no particular form to this statement but it should be in sufficient detail to tell everyone in the room what the plaintiff expects to prove at trial. This statement should be directed to the defendant(s) and their attorney(s). There are no rules of evidence in a mediation, any information that the plaintiff feels should be shared with the defendant should be made at this time. When the attorney has concluded his statement, the party, if they wish may make their own statement. The defendant’s attorney will then be given as much time as necessary to respond to the plaintiff. At the conclusion of the defendant attorney’s statement, the party defendant may make a statement. These statements should be made directly to the opposing party because it is probably the best time that all of the parties and attorneys will have to address each other outside a formal courtroom setting. During this session, the mediator may interrupt and ask questions of either side. The parties are free to answer these questions at the session or defer an answer to a private session with the mediator.

Private Meetings
At the conclusion of the joint session each side will go back to its conference room and the mediator will meet with each of the sides privately. There is no particular rhyme or reason as to which party the mediator meets with first. During this first private session, the mediator will ask for more detail about the claims and defenses and will ask the parties to discuss the strong and weak parts of their respective cases. At the end of each private session the mediator will then ask each party whether there is anything that was discussed during the private session that can be communicated to the opposition. The mediator may ask for an initial offer of compromise to take to the other party. The process is then repeated with the opposing party. During these private sessions the mediator and the attorneys will discuss the risks of trial, the probable outcomes at trial, the law governing the case, and the facts in controversy. The parties should use this opportunity to talk with the mediator about any issue relevant to the lawsuit including the long and short term goals each party might have in regard to the lawsuit. During these private sessions the amounts, proof, and elements of damages will be discussed as well as issues such as the ability of the defendant to pay damages, the need to structure a settlement, or the possibility of settlement by means other than the payment of money.

Finalizing the agreement
Once a settlement is reached, the parties will put their agreement in writing and sign it. It is strongly suggested that the parties not adjourn the mediation until a written agreement is signed. Copies of the signed agreement are provided by the mediator to each party but the original is kept in the mediator’s file. Copies of sample agreements are available on this website but parties are free to use their own settlement forms.

Concluding the process
Finally, when the mediation is over, the mediator will send a letter to the presiding judge (if required) that states that the parties met and that the case settled or did not settle. If court rules dictate another form of communication the proper form will be used. No other information is given to the judge. The judge is not told the nature of the settlement or that the case did not settle for any particular reason.