A Valuable Tool in Setting the Stage for Resolution at Mediation
By Dan Brookhart
Brookhart Law & Mediation Newsletter – August 2013
Often the seeds of resolution can be planted in advance of the actual mediation. The mediation memorandum is helpful in informing the mediator of the background of the case as well as outlining the salient legal and factual issues. However, by its very nature, the mediation memorandum has its limitations in conveying the posture of the parties as well as the process best suited for mediation of the case. A pre-mediation telephone conference between the mediator and each attorney can serve as a valuable tool in sowing the seeds of settlement.
The pre-mediation telephone conference, which occurs subsequent to the receipt of the memoranda and separately with each attorney, should have the following objectives:
- Fills in the blanks – The telephone conference allows the mediator and counsel to confirm the key issues in the case as well as to address any questions arising from the mediation memoranda. The call provides an opportunity to identify and discuss key factors (i.e., anticipated motions, liens, etc.) which invariably affect resolution. It also is an opportunity to ensure the presence, or at least availability, of all key decision makers and interested parties. Covering these and other topics provides for a more efficient and time effective mediation.
- Ascertain posture of parties – It is of immeasurable help for the mediator to understand the posture of the parties prior to walking into the conference room on the day of mediation. Discussing questions such as why the parties decided on mediation and why the attorneys believe mediation will be helpful in resolving the case are very informative for the neutral to achieve a better perspective of the entire matter. Also, ascertaining the interests of the parties and whether there are any potential obstacles to settlement helps to better focus and plan for the mediation. Addressing these questions in advance of the mediation allows the mediator and counsel to jointly view the case from the ten thousand foot level which helps to direct the process.
- Determines dynamics and directs process – The telephone conference can also serve to advise the mediator of the temperaments of the participants as well as any pertinent dynamics. Any relational dynamics or difficulties between the parties, counsel, etc., are helpful to understand as they assist the mediator in avoiding unsuspected minefields during the mediation. In terms of process, each case deserves an approach best suited to fit the dispute and individual needs of the parties. A pre-mediation telephone conference helps the mediator design the best approach for increasing the potential for settlement and allows counsel to weigh in on the process.
In summary, a pre-mediation telephone conference allows for information to be conveyed and discussed which cannot adequately be communicated in a written memorandum. Just as no case is like another, so it is true with mediation. The prospect for settlement is enhanced by a mediation process and approach which is tailored to each case. The pre-mediation telephone conference provides the foundation for an individualized process. Furthermore, these conferences better prepare the mediator and counsel alike. And better preparation yields the best chance for resolution.
Dan Brookhart, of Brookhart Law & Mediation, is an experienced civil trial attorney who provides full-time mediation and arbitration services in various areas of civil litigation including personal injury, business and commercial litigation, employment matters and construction disputes. He may be reached at 717-459-3948 or Dan@BrookhartMediation.com.