[This presentation is an expanded discussion of the third of four guidelines offered in a previous article titled “Getting to the Bottom Line - Guidelines for achieving success at mediation.”]
At this point in the life of your case, your mediator has been selected, the discovery should be nearly completed, and you have now had an opportunity to confirm with your client the facts giving rise to the suit. So, it is a good time to create a case statement for the mediator and a short outline to be used during mediation. Combined with some legal research and comparable case value reviews, you should be set to mediate and settle your case. Whether you are doing a private mediation by stipulation, a limited mediation by order of the court or an early settlement session from a CMADRESS order, don’t put off getting a real handle on your case.
Case Statement and Outline
The importance of a case statement for mediation is often underrated. Many statements are prepared almost in haste or at the last minute. However, this is the opportunity to make a pre-opening statement similar to that of a trial brief. Using this as the format can become a road map to be followed at the mediation. The mediator will benefit from the efforts of a detailed statement instead of a quick, cut & paste attempt. A few more details will give the mediator a better understanding of each side’s perspective. In that way, the mediator is not left out in the dark about the nature of the case prior to commencement. Brevity is always appreciated but more details are helpful. And get it done well in advance instead of just a day or two before the mediation.
As for the outline, this is intended as a reminder throughout the course of the mediation. Utilizing bullet points, this condensed outline can highlight essential facts, witnesses, reports, case strengths and weaknesses. This will keep participants on track for their own direction in order to stay with the big picture of the entire case. Often during the course of mediation, information is presented by one side or the other that may be viewed as unnecessary and unwarranted, resulting in mental distractions and for some a waste of time. Using the short, condensed outline maintains focus throughout the entire mediation irrespective of what is actually discussed by the other side.
Use Confidentiality as Your Tool
Rules of confidentiality should not be viewed as a hindrance to discussions. When parties unfamiliar with mediation first hear the word “confidentiality,” they sometimes become withdrawn believing all information should now be secret and protected from disclosure. They take on an almost hush, hush, don’t tell attitude. Evidence Code §§ 1115-1128 set out confidentiality for mediation. Become familiar with these statutes. Case statements can easily be titled “confidential” preventing any and all disclosure to the other side. If that is your choice, it will be followed by the mediator.
In the joint and/or the first private session, confirm with the mediator the guidelines of confidentiality that you want used. If this is not done, inadvertent disclosures could happen causing potential harm in the handling of your case. Many mediators work on the understanding that what is shared in private session will be disclosed to the other side unless instructed otherwise. Be sure that the mediator understands your requirements for confidentiality including any reports or exhibits that may be attached to your case statement. Confidentiality often gets confused by inexperienced parties as a form of secrecy similar to that with international diplomacy. Use confidentiality as a tool to allow for candid discussions.
Do Research of Law and Case Value
Prior to mediation, research should be conducted in order to assist the direction of the case. This should include recognizing what the other side will present by way of potential motions in-limine and jury instructions. Anticipate attacks on your case strengths and be ready to rebut claims of weaknesses. Be sure to have handy references to discuss any credits, offsets, liens, discounts, responsibility for breach of contract, mitigation of damages and comparative fault. Bring specific deposition testimony excerpts, discovery responses, reports, case sites and/or statutes for presentation to the mediator. This work will take a small amount of time to help make for a very productive and beneficial mediation.
In addition to doing a work-up on legal research look for verdicts and settlements of same or similar cases. Merely bringing monetary values without factual support can produce unfavorable results in negotiations. Don’t bother bringing in verdicts and settlements from out of state jurisdictions. Spend a little extra time doing the research on actual verdicts and settlements that truly are comparable. And be ready to offer discussion as to why these cases you are highlighting support your suggested value.
Legal research has gone leaps and bounds by use of the internet over the past decade. Formerly, flipping through countless Daily Journal verdict and settlement reports by hand or talking to colleagues was the only way to research case value. Now, the internet streamlines this research to make it an almost effortless process. While looking at case values, also look at experts used in comparable cases. Being able to show that one expert or another has been successful or less than prevailing can be influential in your negotiations. And all of this can be done quickly and easily on the internet well in advance of mediation.
Don’t get caught at a mediation using your cell phone to contact your office about critical case information. You don’t want to find yourself wishing you had done a little more prep. Extra work ahead of time can go a long way for case resolution. Provide to the mediator a detailed case statement well in advance. Create a short outline highlighting selected subject areas as your own guide during the mediation. Assure clients that confidentiality does not mean secrecy. Finally, do some internet research on law and comparable verdicts and settlements. Being truly ready for mediation will not only help you but will assist the mediator in trying to facilitate resolution. Help the mediator so they can help you settle the case.