Since July, 1999, lawyers have been heading towards the CADRe office after a Santa Barbara Superior Court Case Management Conference to sign up for CADRe Mediation [You do not have to wait for the CMC to talk to the CADRe people about ADR. CADRe is user friendly. Its personnel will be happy to answer your questions, etc]. The following is a stream of consciousness guide to successful mediation from one CADRe mediator:

WHAT IS MEDIATION?

Mediation is not medication. It is not meditation. At its purest, it is simply facilitated negotiation where the mediator continues the process that the lawyers should have already begun. A successful mediation may or may not result in a settlement. A successful mediation is one during which the parties enter into open and frank discussions about their claims. Warts are revealed, if not in group, at least in caucus. The parties strive to reach the "realm of reasonableness". Once there, most cases will eventually settle.

LIMITED LIABILITY MEDIATION OR NOT

It is important that you carefully evaluate the monetary value of plaintiff's claims before signing the CADRe Mediation Stipulation. If you conclude that the case's settlement value is $50,000.00 or less, $50,000.00 is the most that plaintiff can demand during the mediation; the CADRe office and not you will choose the mediator; and, the county and not the parties, will pay the mediator [Even if the case has a settlement value of $50,000.00 or less, you can choose a particular mediator if you and your clients are willing to pay the mediator's fees].

If the parties decide that the case has a value over $50,000.00, then there is no cap on the settlement; the lawyers can choose the mediator from CADRe's list of mediators; and, the parties must pay the mediator his/her hourly fee. There is no mediator time limit in either under or over $50,000.00 mediations. Thus, as long as you and the mediator feel that there is progress, the mediation can continue.

WHEN TO MEDIATE

There are no hard and fast rules which govern the timing of a mediation. However, no mediation will be effective unless the parties are prepared to mediate. A RAND study of settlement efforts in Federal District Courts concluded that settlement efforts were not effective in these courts because the parties were simply not prepared to settle because they had not done the discovery needed to evaluate their cases.

PRE MEDIATION DISCOVERY

More often than not, you need to complete enough discovery so that you can fully evaluate your cases. One way for you to do this is to stipulate with the other lawyer(s) about what discovery will be completed before mediation. Additionally, you and the other lawyer(s) can agree to informally give each other information in preparation for mediation. Finally, Code of Civil Procedure §2019 (c) allows the court to order staged discovery in certain circumstances.

PRE MEDIATION CLIENT PREPARATION

Always meet with your clients before the mediation. Find out what the client most wants out of the mediation. Find out what the client is willing to give in return. Explain the claim's strengths and weaknesses to your client. Explain the risks of trial, the potential delay in getting a case to trial, and the uncertainties of the process. Explain the costs to try the case and the possibility that the client may pay some or all of the other party's costs if the client loses at trial.

BRIEFS

Some mediators ask for mediation briefs; some do not. I feel that briefs are helpful in filling in the factual blanks, and in explaining the law. Additionally, by taking the time to prepare informative briefs, you will be better able to evaluate your client's claims.

THE MEDIATION

1. The Joint Session

This is not the forum for aggressive advocacy. Start out by being cooperative. You can always "retaliate" later if the other side is not cooperating. You should also make sure that the decision-maker participates, especially if he/she is not a party to the lawsuit. The decision-maker may well be a spouse, religious advisor, or friend. He/she should be at the mediation so that settlement decisions can be made.

It is vital that the parties actively participate in the mediation. The parties should be allowed to tell their stories during the joint session. If the parties feel that they are getting the opportunity to "have their day in court" they are much more likely to want to settle.

Everybody gets the chance to talk during the joint session, but listen to what others say and do not interrupt. As lawyers, we are conditioned to be advocates. We tend to interrupt when someone says something with which we disagree. In mediation, you need to bite your tongue until it is your turn to speak. You also need to let your client know that listening is as important if not more important than talking since it may give you and your client clues which will help you settle the case.

2. Caucus

This forum gives the parties the opportunity to confidentially talk about all the factors which will affect the party's willingness to settle.

It is sometimes helpful if the parties caucus alone. During a recent second session of a mediation regarding a real estate dispute, two of the parties spoke in private. The matter eventually settled in no small part because of this.

If you have client control problems, you can ask the mediator to "evaluate" your client's claim. If your client hears from the mediator what he has ignored each time you have mentioned it, he/she may finally listen. You should think about alternative solutions to money since not all claims are only about money. For example, a wrongfully discharged employee may be willing to take less money if the employer is willing to provide a letter of recommendation, an apology, or offer job reinstatement. The caucus is an excellent place to discuss these alternatives. Be creative!

3. Negotiation

The negotiation dance begins once each party has taken a "reasonable" position. This was best expressed by an Arkansas mediator who said; "you got to hang the meat low enough so that the dog can reach it". Once this occurs, the negotiation steps frequently become smaller and smaller and the time between steps becomes longer and longer. Be patient!

4. The Impasse

If you reach an impasse, ask the mediator to identify those issues which are the root causes of the impasse. Openly discuss ways around the impasse. Consider scheduling a further mediation once you and your clients have had time to reflect on what has happened or consider using another ADR format.

5. The Settlement

If a case settles, do not leave the mediation without a written agreement. You should always bring your settlement agreements to the mediation. Alternatively, go to court and ask the judge to put the settlement on the record. If the assigned judge is not available, find another judge. The local judges are happy to put settlements on the record.

6. Conclusion

Mediation is a wonderful tool you can use to solve your client's problems without going to trial. As Abraham Lincoln once said: "Discourage Litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses and waste of time."