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MEDIATION PROCEDURES
What to expect

Scheduling a Mediation
Contact Agreement Mediation by telephone or email to inquire about the availability of your case for mediation and to reserve a mediation date.  When seeking to reserve a date, you should provide the following information: (a) the names and contact information of all the parties; (b) the names and contact information of all counsel; (c) the nature of the case to mediate and a brief history; and (d) the agreed location for the mediation.  It is important that all parties agree on a date before scheduling the mediation and it is helpful to identify several alternative dates in case a specific date is not available. If this is court requested mediation the date will need to be as soon as possible to give ample time to reach an agreement prior to the court date.

Mediation Outlines
We request that all sides submit a confidential outline in advance of the mediation setting forth the facts of the case, their disputed arguments and supporting authorities, the status of any prior settlement discussions, their current settlement positions and any other information which the parties or their counsel believe may be helpful.  Typically, Agreement Mediation requests that the outlines be submitted at least 10 days before the mediation date.  This allows time to review and to identify any issues which may need to be discussed during the pre-mediation conference calls with the parties.

Mediation Outline/Brief Guidelines
Depending on the complexity of the case to be mediated the following are guidelines requested for inclusion of the outline/brief:
Outlines/briefs may be submitted on pleading paper or in letter format. Ordinarily, outlines/briefs for half-day matters should not exceed five single-spaced pages and outlines/briefs for full-day matters should not exceed fifteen single-spaced pages (exclusive of attachments).

Included?
Identification of mediation participants:
o Counsel
o Parties
o Insurance professionals
o Lien claimants
o Consultants and/or experts
o Structured settlement personnel
o Anyone else likely to attend
Cast of characters (who is who in the dispute)
Procedural history
o Summary of discovery conducted and planned
o Summary of motions heard, pending or planned
o Trial date
Facts (page and line references to deposition transcripts are unnecessary)
Diagrams
o Chain of commerce flow chart in multi-party cases (tort, real property, construction)
o Organization chart in employment cases
Theories of liability / defenses
Affirmative defenses / responses
Comparative fault
Liability of co-defendants
Attachments (exhibits)
o Primary contracts and correspondence
o Key medical records
Causation
Damages
o Economic damages
o Non-economic damages
o Punitive damages
o Attorneys fees
Mitigation of damages
Collection (e.g., solvency and insurance coverage)
Negotiation history (most recent demands and offers)
     Non-economic interests

Excluded?
Ancillary documents should be summarized in the brief or an attachment. The source documents should be brought to the mediation:
Voluminous medical records and reports
Miscellaneous documents
Deposition transcripts
Written discovery requests and responses
Expert reports
Pleadings

When?
Briefs are due ten days before the mediation, but should be submitted absolutely no less than five days before mediation. Please do not bring the brief to the mediation and hand it to the mediator at that time, because he will not have time to read it.


Exchanged?
Parties are strongly encouraged, but not required to exchange outlines/briefs. Alternatively, the parties may exchange outlines/briefs and submit a supplemental outline/brief to the mediator only. Before preparing a brief, please confer with opposing counsel regarding whether briefs are being exchanged. Parties should not assume briefs are being exchanged.

Where?
For outline/brief delivery, mailing, faxing and e-mailing instructions, please contact our office.

Pre-Mediation Conference
Agreement Mediation will conduct a telephone conference separately with parties or counsel for each side in order to discuss any concerns regarding the process, which party representatives will be attending the mediation and whether they have settlement authority, counsel’s views regarding a joint session and any other issues that may need to be discussed prior to the mediation.  The primary purpose of the pre-mediation conference call is to identify and address any procedural issues that should be resolved prior to the mediation so that the process is as efficient and productive as possible.

Presence of Decision Makers
In order for the mediation process to be effective, it is critical that persons with settlement authority personally attend.  A person has "settlement authority" if he/she possesses discretion to make binding decisions on all the issues including any monetary amounts.  The absence of one or more decision makers often creates an obstacle to settlement because their valuation of the case may not reflect important information generated during the process, some of which may be difficult to convey by telephone.  In cases where insurance coverage is involved, Agreement Mediation strongly recommends that the insurance representative attend the mediation.  If it is not feasible for the insurance representative to attend in person, the representative should participate by telephone or videoconference throughout the entire process.  Typically, it is helpful for the persons involved in the key events giving rise to the dispute to also attend the mediation so that they can clarify facts.  In addition, in cases where strong emotional feelings are involved, it is sometimes important for one party to hear directly from the other in order to correct misunderstandings and help diffuse lingering animosity. 
During the pre-mediation conference we will focus on issues that are particularly important for effective mediation, including what information has been (or will be) exchanged between the parties prior to the mediation, the nature of the relief sought by plaintiffs (including whether any changes to business operations or other equitable relief is sought), which party representatives will be attending the mediation and whether experts or consultants should attend, whether there have been any previous rulings by the court and if those rulings have been regarded, any new threshold legal issues, and the issues which parties anticipate will be the most difficult to resolve.  
During the mediation, Agreement Mediation will facilitate the parties’ negotiation of the many issues that must be resolved to reach settlement.  If needed, we will help the parties to resolve any additional disputes that may arise in the course of finalizing the settlement documents and assist in the writing of the settlement documents, though it will be Counsel’s responsibility for filing any documents with the court. 

Day of Mediation
All mediation participants will be required to sign an agreement to proceed with mediation verifying that the decision makers are in attendance. Therefore, unless alternative arrangements have been discussed, everyone whose decision is necessary for settlement should personally attend the entire mediation. This may include a plaintiff's family member, lien claimant's representative, insurance professional or an insured being defended under a reservation of rights. If you do not intend to be accompanied by the ultimate decision-makers, please notify other counsel in writing, so their clients and they can decide whether to proceed with or cancel the mediation.
The rules of the process will be restated and any new issues reviewed.
Come prepared to stay the entire allocated time or longer if necessary to reach settlement. Not all mediation can be settled in one session, but much mediation is settled in the allocated time. It is important not to rush yourself due to time constraints. If a session runs beyond time but settlement is close additional time and fees may be allotted for that day. We have come together that day to reach a settlement. However, if additional days are needed they may be arranged.

During the Mediation
Joint Session. Generally, the mediator will start with a joint session attended by all parties and counsel. Please be prepared to summarize your position using whatever means are most effective including, but not limited to, oral explanation, documentation and visual aids. Clarify your  position for the benefit of the decision-makers in attendance, rather than "prove your case." Normally, initial presentations will last between ten to thirty minutes per party and may include participation by the attorneys. After the initial presentations are made questions may be asked of each side.

Separate caucuses. Following the joint session, the mediator will meet separately and privately with each party and his or her counsel. In these confidential caucuses, the participants are free to discuss information which may help get the case settled, and which may not have been disclosed in direct negotiations. They may also discuss with impunity information which should not be revealed to other participants. The mediator will help each party and his or her counsel explore the strengths and weaknesses of the case, the ranges of outcome, and additional any non-economic interests. The caucuses provide an excellent opportunity for realistic evaluation of settlement options without compromising any party's negotiating posture.

Reconvening. Ordinarily, caucusing continues until parties reach an acceptable settlement, but the mediator may bring the parties back together at anytime. The mediator will reconvene a joint session and summarize where the terms of the negotiated agreement currently stand allowing the parties to ask direct questions of each other or counsel for clarification. At that point additional separate caucuses may be used again. Thereafter, counsel may decide to draft and have the clients execute a stipulation containing the key terms of the agreement or if parties have reached settlement the Settlement Agreement may be drawn up.

After the Mediation
If the case is not settled at the mediation, the mediator may conduct follow-up activities. Alternatives include caucusing by telephone or in writing and/or scheduling a second mediation session.

 

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Contact Agreement Mediation

859.983.7315

dani@kymediation.com