Step One: The Planning Meeting
After being notified that I have been retained to mediate a case, my office will schedule a planning meeting with counsel only. Out of town lawyers may participate by phone. This session should normally last no more than two hours, though more complex cases may require much more time. Prior to the planning meeting, I will ask the parties to complete a case profile listing certain information concerning the procedural history and nature of the case.
During the planning meeting, we will discuss the case jointly and separately. The primary goal of the planning meeting is to identify specific issues that may impede or interfere with later negotiation. Once those issues are identified, I will suggest steps that might be taken to alleviate or resolve the impediments and thus set a better framework for negotiation.
While each case is unique, there are several common impediments that often surface during a conventional one-session mediation.
Controlled Information Exchange
Perhaps the most frequent obstacle confronting the mediation process concerns the perceived need for further information by one party or the other. This often arises when the parties conduct mediation in the early stages of a case, before extensive discovery has been completed.
During the planning meeting, the specific information needed by the parties to evaluate settlement is identified. An agreement is negotiated for the production of the information under reasonable and controlled circumstances. This information exchange does not replace the formal discovery process in litigation. It is designed to provide an efficient and prompt exchange of information to facilitate settlement negotiation.
Neutral Evaluation of Key Facts
Conventional mediations often break down early when the mediator finds an intractable disagreement on a key factual issue. In the planning meeting, such a key factual issue can be identified. The parties may agree to submit competing evidence concerning the disputed fact to me. I will evaluate the likely outcome of the disputed fact at trial. This might include authorizing me to talk directly with certain witnesses.
The manner in which I discuss my neutral evaluation with the lawyers is carefully planned. While my evaluation is no substitute for a jury decision, hearing a neutral and impartial evaluation can reduce uncertainty and thus enhance the opportunity for compromise.
Neutral Evaluation of Key Legal Issues
In much the same way as key disputed facts can be evaluated, a mediator can be asked to provide a neutral evaluation of key legal issues. Often mediation breaks down because the lawyers maintain diametrically opposed views on the likely outcome of key legal issues.
In the planning meeting, such key legal issues can be identified. The parties may agree to submit informal briefs and allow me to evaluate how the issue is likely to be decided by the trial court or an appellate court.
Neutral Expert Evaluation
In those cases in which competing expert opinions are crucial to the outcome of a case, the planning meeting can result in an agreement for an informal exchange of expert opinions.
In addition, the parties might agree to have me interview the competing experts and provide a neutral evaluation of their expert testimony.
Relationship Dynamics
Every litigator knows that interpersonal dynamics between the parties, and sometimes between the lawyers, can interfere with the negotiation process. Strongly held feelings of betrayal, anger, revenge and a range of other negative emotions often sidetrack, if not abort, the negotiation process.
In a conventional one-session mediation, a party who holds these emotions often feels isolated and silenced. The lawyers and the mediator usually begin immediately to focus on dollars when one or more of the parties are focused on emotional, not financial factors.
In the planning meeting, the relationship between the parties is discussed. If client emotions play a large role in the case, a process is discussed to address those emotions.
I might suggest that I meet with the party, and his or her attorney, to really listen to the party’s story. This listening session itself can help the person see that he or she is being heard.
We might also discuss in the planning meeting a controlled communication between the parties. Of course, this must be done carefully. However, I have found that parties sometimes actually wish to express apologies or other messages that can trigger a positive response from the other person. The point is to consider a process whereby the person feels that he or she has had a meaningful chance to be heard. This can be as important to the person as money.
There are many other examples of obstacles that impede productive negotiation in a conventional mediation. Our goal is to address the obstacles before the negotiation begins.