Page 7 - Phoenix Vol 11 No 2

AMY LIEBERMAN | Mediation
Effective Mediation Submissions
MEDIATION MEMOS: THE BARE MINIMUM
For those of you who practice in an area where you mediate regularly, you may have a standard submission for- mat you use. Or, your mediator may ask for speci c information. Either way, what is the bare minimum your pre-mediation memo should contain?
• Procedural Posture
• Key Players
• Claims
• Key Facts – Disputed and Undis-
puted
• Applicable Law
• Relevant Documents – highlight-
ed and tabbed if extensive
CONFIDENTIAL OR EXCHANGED?
In some practice areas, it is stan- dard to exchange, whereas in others, the pre-mediation submissions are given con dentially to the mediator. Which is better?
e bene ts of exchanged memos are that each side knows, in advance, where the other party is coming from in terms of the views of the case. Edu- cation is a part of the process, and it helps if everyone knows as much as possible in advance. e downside is that the memo then serves solely as an exercise in advocacy – similar to an opening or closing argument, or a mo- tion for summary judgement. While exchanging submissions may cause your opponent to see the de ciencies in their own case, it can sometimes have the opposite e ect, especially if a new demand or o er is included– opposing counsel may think, “Wow, they really don’t see their own risks” or “we don’t have a chance of resolv- ing, why are we going?”
And, remember – there is almost always something new that is learned in mediation, not shared or known before, even where memos are ex- changed.
If you do exchange memos, submit a second, con dential one to the me- diator.
ANALYSIS OF STRENGTHS AND WEAKNESSES
Regardless of whether you ex- change memos or submit them con- dentially, the best submissions tell the mediator not only what you view as strengths of the case, but also in- dicates potential weaknesses or risks. Rarely is there a 100% slam dunk case on liability – but even where this is the case, or where liability is super- strong, there can be a huge variance on the views of the range of potential damages. e more you provide to the mediator, the better.
DEMAND LETTERS, MOTIONS AND/OR RULINGS
It can certainly be a time-saver to simply give the mediator copies of past settlement correspondence, or copies of motions and/or rulings. If all issues are thoroughly addressed in those documents, why re-create the wheel? Even if this is done, though, it is still best to send a separate letter to the mediator containing your analy- sis of what has occurred since those documents were sent or rulings were issued and providing your insight into other personal dynamics that might come into play during the mediation.
Perhaps you are just super-busy, with limited time to put into prepara- tion of a mediation memo. However, where no original submission is pre- pared, potential interpretations of that inaction could be, “I don’t care about this case,” “I don’t care if this case settles at mediation,” “I am not a very thorough lawyer.”
If 90-95% of cases resolve at media- tion, this is your client’s day in court, which means it is worth the invest- ment of time to make sure you, your client and the mediator are as armed with full knowledge to be as prepared
– and e ective – as possible.
PAST SETTLEMENT HISTORY
is information is essential be- cause it alerts the mediator to poten- tial problems where one or both sides have di ering information about where the parties le o in settlement discussions. Parties tend to prepare for mediation based on where they thought the other party was last. If there is a signi cant change in posi- tion or a mis-remembering of verbal discussions, that can be caught and addressed by the mediator in advance of the session.
TIMELY SUBMISSION
Most mediators will ask for memos one week in advance. ere is a rea- son for this: the mediator wants to be able to review the submissions and have time to reach out to counsel in advance to discuss any issues or pre- mediation concerns. If the memos come in too late, there may be no time for that studied review and pre-medi- ation outreach.
PRE-MEDIATION CALL
Don’t hesitate to reach out to your mediator to provide any information you have not put in your memo, or to discuss particular challenges you anticipate might arise during the mediation. Remember, people go to mediation for di erent reasons at dif- ferent times: to avoid bad PR, because they have issues communicating with opposing counsel, or could use assis- tance educating their clients; their cli- ents may have a need to be heard; or the timing is such that nancially it is in their best inter-
ests to resolve. e more you share with the mediator, the better your me- diator will be able to get you there.
Amy L. Lieberman is a full-time professional mediator of employment and business con ict. She has repeatedly been listed in the Best Lawyers in America, Southwest Super Lawyers, and Arizona’s Finest Lawyers in Alternative Dispute Resolution, and is the author of the book, “Mediation Success: Get It Out, Get It Over, Get Back to Busi- ness.” For more information, visit www.insightmediation.com or call Amy at (480) 248-3366.
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