Three Ways to be More Productive and Efficient at Your Next Mediation

Time is money (and in the legal world, time is expensive). So, it is in both yours and your client’s best interests to be as productive and efficient on the day of mediation as possible. Efficiency will decrease mediation costs, as well as your client’s legal bills. Following these three tips will help maximize your mediation time and minimize mediation expenses:

1. Provide the Mediator with Information About Your Case Prior to the Mediation.

Ideally, both parties would provide a Position Statement to the mediator before mediation day. In reality, however, attorneys are often restricted by the legal budget of their clients or their own time constraints such that drafting and sending a formal mediation statement may not possible. But typically, at the very least, a demand letter has usually been sent or a complaint filed. If nothing else, send this documentation to the mediator. It takes all of five minutes and it helps the mediator get up to speed on the type of case, and hopefully the specific allegations, prior to the mediation. This can save a tremendous amount of time (and money) on mediation day.

2. Schedule a Pre-Mediation Conference Call.

Unlike litigation and arbitration, ex parte communication with the mediator is permitted in mediation. So, even if the mediator does not request such a call, you would be well advised to insist upon it. You should treat it as a sort of “heads up” call with the mediator. It should be a frank and candid conversation with the mediator wherein you discuss any barriers to settlement that you anticipate (other than the facts and the law). Essentially it is a conversation about case dynamics that might include any issues you are having with opposing counsel (and even your own client), conflict between co-defendants, and personality issues of clients that might need to be anticipated and managed. This helps the mediator to know how to best approach each client, as each client is different.

3. Use your mediator as a sounding board.

Other than the limited pre-mediation documentation you may send the mediator, he or she comes into the mediation knowing little about your case. You, on the other hand, have lived and breathed your case for an extended time and have likely become very entrenched in your position. It is therefore particularly helpful if you and your client can trust the mediator and listen to his or her impression of the case. With less knowledge of the case, mediators cannot predict ultimate outcomes, but they can let counsel and the parties know how certain things impact them (as they walk into the case blindly on the day of mediation). If nothing else, a mediator is a good predictor of how a judge or jury might react when hearing your case for the first time.