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Title: E Galton Mediation Cklist 01-01-94
From: mdocumen (Model Documents -- Counsel Connect - New York)
Posted on: Fri Nov 10 12:00:00 1995

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Abstract:

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Comment:E Galton  Mediation Cklist    

Author: Eric Galton
Source: "Representing Clients in Mediation," published by
American Lawyer Media L.P., edited by Diane Burch Beckham.
Order information: (800) 456-5484. 
Address: c/o Texas Lawyer
400 S. Record St. #140
Dallas, TX 75202-4889

Editor's notes: This is one of several excerpts from
"Representing Clients" in this menu.
Representing Clients in Mediation
Mediation Checklist


MEDIATION CHECKLIST

I.  KEYS TO A SUCCESSFUL MEDIATION

1.  Select a qualified mediator

2.  Prepare for the mediation

3.  Resolve authority to settle issues prior to the mediation

4.  Use mediation as soon as is practical

II.  SELECTING THE MEDIATOR

1.  At least six years litigation experience or at least six
years practical experience in an area in which there is some
exposure to litigation matters

2.  At least 40 hours of mediation training

3.  Actual mediation experience

4.  Uses case evaluation/separate caucus method

5.  Willing to discuss fee structure

6.  Able to provide neutral site for mediation

7.  Requires pre-mediation submissions

8.  Encourages lawyer participation

9.  Willing to reserve adequate time to mediate matter

10.  Absence of any conflict

III.  PRE-MEDIATION SUBMISSION OUTLINE

1.  Provide a concise statement of issues and positions

2.  Identify strengths and possible weaknesses

3.  Provide a chronology

4.  Outline negotiations and proposals to date

5.  Specify who will be present at the mediation

6.  Provide copies of current pleadings

7.  Provide copies of pertinent appellate decisions

8.  Provide copies of key articles, critical excerpts from
depositions, copies of key medical or expert witness reports

9.  Tab and index submission

10.  Place submission in a three-ring binder

11.  Mark submission as confidential

IV.  CLIENT PREPARATION FOR MEDIATION

1.  Explain the mediation process

2.  Explain the mediator's role

3.  Provide a copy of pre-mediation submission

4.  Explain your role at mediation and how it will be
different from your role in court

5.  Explain that the client will actively participate

6.  Explain that the mediator may ask client questions

7.  Explain the separate caucus

8.  Explain benefits of mediation

9.  Anticipate initial unrealistic negotiating positions

10.  Anticipate sensitive issues and formulate strategies to
deal with such issues

11.  Provide the client with the mediator's background

12.  Objectively evaluate strengths and weaknesses of case
with client

13.  Encourage patience, flexibility, open-mindedness,
listening

14.  Encourage polite, constructive approach

15.  Anticipate impasses and need to work through impasses

16.  Discuss authority issues

V.  ADR ORDER

1.  Obtain prior to session

2.  Include confidentiality reference

3.  Include pursuant to ADR statute

4.  Include identity of mediator

5.  Include date, place, and time for mediation

6.  Include allocation of mediation costs

7.  Include non-binding

VI.  WHO SHOULD ATTEND/AUTHORITY TO SETTLE

1.  Counsel should attend

2.  Party should attend except in RARE instances and ONLY if
agreed to in advance by all parties

3.  Insurance representative with authority to settle

4.  Preferable to have insurance representative with full
authority to settle present

5.  Should logistical or economic factors make it impractical
to have insurance representative with full authority able to
attend:

A.  Discuss matter with opposing counsel

B.  Have local representative with limited authority attend

C.  Agree that representative with full authority shall be
available by telephone during the session

D.  Reduce such agreement to writing

6.  In exceptional cases, a critical expert witness may attend

7.  In cases in which a structured settlement is anticipated,
the structure specialists should attend

VII.  OBJECTING TO A MOTION TO REFER OR OVERCOMING OBJECTIONS
TO A MOTION TO REFER

1.  Written objections must be filed within 10 days after
receiving a notice of referral

2.  Court must find a REASONABLE BASIS for an objection to a
referral

3.  "Reasonable basis" is not defined

4.  Standard is discretionary

5.  "I don't like ADR" is probably not a reasonable basis

6.  "Mediation will not work" is probably not a reasonable
basis

7.  Significant economic hardship might be a reasonable basis

8.  Proof that referral is for delay purposes only might be a
reasonable basis

9.  Proof that the referral is designed for abusive discovery
purposes might be a reasonable basis

10.  If the court has assigned a mediator, proof that the
mediator may not be impartial or has a possible conflict might
be a reasonable basis for objecting to the referral to that
mediator

VIII.  LAWYER'S ROLE AT MEDIATION

1.  Power of persuasion and negotiating skills very much apply

2.  Rare opportunity to communicate DIRECTLY with other party

3.  Lawyer's role at mediation is different than at trial

4.  Lawyer should not cross-examine other party

5.  Lawyer should not permit his client to be cross-examined

6.  Lawyer should not showboat for his client or other side

7.  Lawyer should emphasize mediation in good faith

8.  Lawyer should appear open-minded and reasonable

9.  Lawyer should be firm, but diplomatic

10.  Lawyer should be a good listener

11.  Lawyer should repeat back what he has heard to
demonstrate he has listened

IX.  LAWYER'S OPENING STATEMENT

1.  Introduce yourself

2.  Humanize yourself

3.  Introduce your clients and explain who they are

4.  Acknowledge your belief in the mediation process

5.  Emphasize you and your client are present in good faith

6.  Emphasize you are prepared to listen and work through
problems

7.  Emphasize your belief that a resolution will be in
everyone's best interest

8.  If strong feelings or emotions are present, acknowledge
that you are aware that such feelings exist and that it is not
your intention or desire to embarrass, humiliate, or inflame
the other party

9.  If the other side is injured or a death has occurred,
express your sympathy

10.  Explain your role on behalf of your client

11.  Explain to the other PARTY that you have thoroughly and
objectively evaluated the case

12.  Outline to the other party your position, the basis of
your position, and the fact that you have a good faith
disagreement on such issues

13.  Close by emphasizing your willingness to listen, your
willingness to work through problems, and your hope that with
effort and patience on both sides an agreement may be reached

14.  NEVER discuss money in your opening statement

15.  NEVER personalize matters in your opening statement

16.  Avoid absolute words; i.e., "won't," "never," etc.

X.  THINGS YOU SHOULD NEVER DO DURING A MEDIATION

1.  Never discuss money in the presence of the other party.
Communicate offers through the mediator in the separate caucus
phase of the mediation

2.  Never refer to the other party by first name unless you
have asked for permission to do so

3.  Never insult or criticize the mediator - especially in the
other side's presence

4.  Anticipate volatile issues and NEVER make comments to the
other party that will trigger strong emotional responses

5.  Never undermine the other party's or other lawyer's
dignity

6.  Never engage in theatrics; i.e., getting up to leave, etc.

XI.  COLLECTIVE SESSION CONSIDERATIONS (AFTER OPENING
STATEMENTS BY LAWYERS)

1.  Have your client prepared to respond to the mediator's
questions

2.  Have your client prepared to discuss his feelings

3.  Have your client prepared to speak in constructive,
respectful terms

4.  Have your client prepared to express hope that the session
will produce an agreement

5.  Have your client prepared to express his willingness to
listen and work through problems

6.  Come prepared to exchange material that is otherwise
discoverable

XII.  SEPARATE CAUCUS PHASE

1.  Parties and counsel are placed in separate rooms and
caucus privately with the mediator

2.  All communications are confidential save and except what
the mediator is authorized to disclose to the party in the
other room

3.  Initial caucus round typically lasts 30 minutes

4.  Subsequent caucus rounds last 10-20 minutes

5.  Negotiating process typically begins after second round

6.  In the initial caucus, the mediator is attempting the
following:

A.  Getting to know the parties better (bonding)

B.  Assessing who is the decision-maker (or makers)

C.  Assessing the personality/negotiating styles of the
parties

D.  Mining for economic and non-economic issues

E.  Permitting the expression of strong feelings

F.  Identifying sensitive issues

7.  In the second caucus, the mediator is attempting the
following:

A.  Leading the parties in an objective evaluation of their
case

B.  Having the parties identify the strengths of their case on
their own

C.  Having the parties identify the weaknesses of their case
on their own

D.  Playing devil's advocate with the parties and assisting
the parties in understanding or acknowledging possible
weaknesses that the parties may not have listed on their own

8.  In caucus round three and thereafter, the mediator is
attempting the following:

A.  To get the parties "to dance"; i.e., begin the
negotiations

B.  To motivate the parties to negotiate reasonably and
constructively

C.  To work through impasses

D.  To persistently force the parties to look at their case
objectively

E.  To communicate proposals and messages; i.e., the mediator
as shuttle diplomat

F.  To elect to re-convene the parties if appropriate to work
through particular problems

G.  To hold a lawyer's caucus if special legal issues arise
out of separate caucus

H.  To minimize negative reactions to proposals, to identify
interest, and to keep the parties working through impasses

XIII.  MEMORANDUM OF AGREEMENT

1.  While not the final settle documents, the agreement should
clearly and specifically outline all terms of the agreement

2.  Agreement should be jointly drafted by all counsel so that
it is not "one side's" agreement and so that the written
agreement clearly reflects the agreement reached

3.  Should be signed by all counsel and parties

4.  All counsel and parties should receive copies of the fully
executed agreement

XIV.  ECONOMIC AND NON-ECONOMIC INTERESTS IN LITIGATION

1.  Avoidance of risk

2.  Avoidance of delay

3.  Avoidance of costs

4.  Party's ability to decide own destiny

5.  Need to be listened to

6.  Need to be understood

7.  Integrity

8.  Reputation

9.  Possible future relationships

10.  Acknowledgement of responsibility

11.  Apology

12.  Sympathy

13.  Closure

XV.  IMPASSES

1.  Present, often many times, in every mediation

2.  Often reflects limited or different negotiating styles of
parties

3.  Ask "why questions" to overcome impasses; i.e., explain
the basis of the proposal and the NEEDS that are reflected in
a proposal

4.  Encourage the other party to categorize needs

5.  If at an impasse, forge a new and agreed negotiating
pattern

6.  Re-visit the other side's weaknesses with the mediator

7.  Determine if meeting non-economic interests will help
resolve the impasse

8.  Be patient.  Some negotiators dance fast.  Some
negotiators dance more slowly.

9.  Candidly express your frustration and concern regarding
impasse to the mediator.
XVI.  OUTLINE OF THE MEDIATION PROCESS

Select the Mediator

Enter Mediation Order

Pre-Mediation Submission

Mediator Introduction

Lawyers' Opening Statement

Collective Session/Brainstorming

Separate Caucus

Possible Second Joint Session

Possible Lawyers' Caucus

Drafting the Agreement 



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Copyright  1998 American Lawyer Media, Inc. All Rights Reserved.
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