1. My Role as Mediator
2. Goals and Objectives
3. Before the Mediation
4. During the Mediation
5. After the Mediation
6. Conclusion
1. My Role as Mediator. As your mediator, I will encourage and facilitate dialogue, provide
guidance, assist the parties in clarifying their interests and in understanding their differences, and will work towards a mutually acceptable and binding resolution. I will not act as a judge, fact finder, arbitrator, nor advocate
for any party. I will have no authority to impose a settlement. I will not give legal advice or legal counsel. The parties have retained and will rely upon their own legal counsel and others with necessary expertise to give
them advice as needed and will not look to the mediator for such assistance.
The Goal. As your mediator, my mission is to facilitate a resolution of your case through objective evaluations and sensitive, yet realistic, communications with you and your client. I provide a style of mediation that combines optimism, active listening, and creative alternatives that may be applied toward resolution of your case. The goal of the parties to this mediation is to achieve their own voluntary, mutually beneficial resolution of the dispute.
Objectives. The parties' objectives are to develop and share information on the nature and extent of the past and future concerns that each has about the matters in controversy; to identify and clarify the various interests that all parties have relating to the case and its impacts on the parties and relating to the development and maintenance of a constructive working relationship; to develop options for dealing with the concerns and accommodating the interests of all parties; to analyze and evaluate the options developed; to come to agreement on reasonable terms; and to memorialize these agreements in a written, signed document to be ratified by all parties.
Scheduling. After conferring with counsel or other representatives of the parties, I will establish a convenient date, time and place for the mediation conference. Before the mediation is actually placed on my calendar, they are to be confirmed not only by the attorneys, but also by their clients.
Conflicts Check. I will do a thorough conflict check of the parties. To the extent that I find any potential conflict, I will identify these to all counsel and/or parties. To the extent that the parties wish to waive this conflict, I ask that it be set forth in the position statements (see below), as well as at the mediation itself.
Participants. Each party will designate its principal representative to the mediation. Unless alternative arrangements have been discussed, everyone whose decision is necessary for settlement should personally attend the entire mediation. This may include a plaintiff's family member, lien claimant's representative, insurance professional or an insured being defended under a reservation of rights. If you do not intend to be accompanied by the ultimate decision-maker, please notify other counsel in writing, so their clients and they can decide whether to proceed with the mediation.
Position Statements. I will request a position statement from each party that should be delivered 5 days prior to the mediation. Ordinarily they should be not more than five pages in length, and I strongly encourage that your position statement be shared with your opposition. The more the opposing party understands your position, the better he or she will be able to negotiate with you. To the extent that you wish to make a portion of your statement confidential, please present it to me in a "blind p.s." or under separate cover, and specifically marked "confidential." The position statement should set forth a brief recitation of the facts, the issues, the parties' positions and a candid assessment of their strengths and weaknesses, the status of the negotiations, and any suggestive creative solutions. Generally, few if any, exhibits are necessary, but if deem appropriate, you may include copies of key documents, such as relevant pleadings, motions, briefs, orders of the court, reports, photos or diagrams. I will review these prior to the mediation.
Preparation. Proper preparation is key to maximize the opportunity for a successful resolution of your case. It is suggested that you review Tips for Successful Mediation, and provide your client a copy of A Client's Guide to Mediation.
Mediation Agreement. In advance of the mediation conference, the parties and their attorneys will be required to sign a Mediation Agreement. The agreement covers the nature and scope of the proceedings, the required good faith on the part of all participants, information exchange, confidentiality, and the mediator's fees. It would be most helpful for the attorneys to review the agreement in detail with their clients in advance of the mediation conference.
Introductory Statement. At the mediation, I will begin with an introductory statement to all parties and their counsel. It is important that as we begin the mediation process, all parties understand my role and maintain reasonable expectation of how the process will proceed. I will outline the various segments of the mediation, and I will also use this opportunity to establish a mutual respect among the conflicting parties and their attorneys.
Opening Statements by the Parties. Following my introduction, Please be prepared to summarize your position using whatever means are most effective including, but not limited to, oral explanation, documentation and visual aids. Clarify your client's position for the benefit of the decision-makers in attendance, rather than "prove your case." This is a critical phase in the mediation in that the opposing party will directly have the chance to hear from you. You should be prepared to take full advantage of this opportunity by making your points, expressing your empathy, and/or persuasively setting forth the facts and/or the law of the case. Normally, initial presentations will last between ten to thirty minutes per counsel. Participation by the parties is encouraged.
Caucuses.
Following the opening statement, we will break up into separate conference rooms. I will begin to "shuttle" between these rooms engaging in confidential discussions
(caucuses), to explore the strengths and weaknesses of the case, the possible ranges of outcomes ("jury evaluation"), the costs of prosecution or defense and any non-economic interests. I will take specific statements back to the other
side, and receive authority to make counteroffers. The caucuses provide an excellent opportunity for realistic evaluation of settlement options without compromising any party's negotiating posture. These caucuses will be strictly
confidential, unless you advise me otherwise.
Each party and their counsel should feel free at any time to ask for their own confidential meeting outside of my presence. I will provide you with a reasonable amount of time to confer for the purpose of evaluating and communicating your positions to me so that I, in turn, may present them to the other party.
It is also important for your client to know that during the course of the mediation there may be a need for what we call an attorneys caucus. This is a meeting among the attorneys in which we will discuss legal or factual issues, or where we must identify an impasse in the mediation.
You and your clients should understand that the first set of caucuses will usually not establish resolution. In fact, your positions may be "worlds apart". This should not frustrate you and you should not get discouraged. You may hear me say throughout the mediation, "we can obtain resolution if we simply work through the numbers and explore options". Resolution can and will be obtained if you will devise a strategy for such movement. Come to the mediation prepared to be flexible with your evaluation as well as with your strategy. I will be most supportive of your effort as we attempt to identify the parameters of settlement.
In many mediations, if we can bring the parties into "the ballpark", we can achieve a compromise that may not otherwise be achieved through other forms of negotiation. We will only do this upon approval of counsel and their parties.
Reconvening. Ordinarily, caucusing continues until parties reach an acceptable settlement. It is not unusual, however, to reconvene a joint session before a settlement is reached, if both parties
feel it would be productive to help clarify issues, clear the air, etc. Once a settlement is reached, I will reconvene a joint session and summarize the terms of the negotiated agreement. Counsel, or myself, will draft and have the
clients execute a stipulation containing the key terms of the agreement.
5. After the Mediation. If the case is not settled at the mediation, I may conduct follow-up activities. Alternatives include caucusing by telephone or in writing and/or scheduling a second mediation session.
6. Conclusion. Mediations are successful over 85% of the time. It requires your preparation, realistic expectation and patience. Please give yourself the entire day without interruption. You have my commitment to work as hard and as long as necessary to bring you to resolution. I look forward to assisting you. Should you have any questions, please do not hesitate to contact me at anytime.
[Adapted and modified by Daniel R. Denton from forms provided by Rodney Max and Robert Barrett, for publication in ADR Personalities and Practice Tips, ABA, 1998.]
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Daniel R. Denton
, PC
Attorney & Mediator
P.O. Box 850
Beaufort, SC 29901
843.524.9445
DanDenton@Lawyer.com
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