By Kirk Yake
You have agreed to mediation. What should you do now? Below is a list of considerations. While it is not exhaustive and might not apply to your specific matter, it will cover many of the basics. I hope you find it useful.
1. Timing:
At issue?
For mediation to have a good chance of resolution, the parties must be aware of (a) the nature and value of the claims, (b) the existence and scope of defenses, and (c) the likelihood and extent of liability by defendants/respondents. In short, is the matter at issue? Have the claims been developed sufficiently to place defendant(s) on notice and merit a serious response? If a pre-litigation mediation, is the claimed violation sufficiently specific, and has the respondent had the opportunity to respond and evaluate the claim? If pending litigation, have the complaint and answer been filed? Has a CCP 998 demand been served or expired?
Discovery Adequate?
Discovery is important for success at mediation. If the dispute is in litigation, Plaintiff may face challenges or defenses to a mediation demand unless having already obtained verified responses to discovery. Before mediation, review jury instructions for the elements of liability for each cause of action and be prepared to argue them. Identify and authenticate the essential documents. Research legal issues that impact liability, including statutes of limitations. Review the applicable contract with respect to a demand for attorneys’ fees. Be prepared to substantiate, both legally and factually, each component of damages.
All PRPs in?
Nothing can sabotage mediation like an empty chair. It is incumbent on plaintiff to identify, name, and include all potentially responsible parties (“PRPs”) in mediation. If there’s an absent PRP at the mediation, provisions should be made to engage that party in some way, either by telephonic attendance or availability, by affidavit, and by establishing the scope and extent of responsibility and liability to the extent possible. The reality, unfortunately, is that physical attendance at the mediation by all PRPs is perhaps the most important element to its success.
Insurance considerations?
The existence, terms, limits and applicability for coverage of the claims by plaintiff’s own (first-party) and the defendant’s (third-party) insurance policies should be investigated prior to mediation. Prompt notification of a potentially covered claim is a requirement for coverage under most policies – double-check before mediation, because sometimes claims morph from the time of initial client intake. Insurers often raise coverage hurdles during mediation – after all, oftentimes it’s their money that resolves the case. Identify all insurers and the claims representative or adjuster; request, obtain, and review policies, exclusions, endorsements; inquire pre-mediation whether the adjuster has had the opportunity to analyze the claims and provide any information requested. Note: CA Evidence Code §1119 protects as confidential any such communications made for the purpose of mediation, allowing counsel to discuss this subject matter confidentially.
2. The Client
Is the Client Prepared?
The client must understand and approve the material terms of settlement; therefore mediation is not going to succeed without a prepared client. Serious ethical fallout and damaged client relations can ensue if the client is not informed of the claims and defenses, doesn’t have an understanding of the value of the case, and doesn’t understand the mediation process and what is likely to occur during the mediation. In other words, meet with the client, discuss, and explain. When you meet with the client (face-to-face is best), make sure to have an agenda to discuss your position, strategy, and the likely results at mediation. Don’t forget to review with your client the disclosure requirements outlined in Evidence Code §1129, obtaining the client’s signed acknowledgement.
3. Preparation
Mediation Briefing and Preparation.
Exchanging mediation briefing with your opponent (copying the mediator) is beneficial to the process. If there is information that is for the mediator’s eyes only, a separate letter brief to the mediator is the best way to handle this. To hit the ground running, a separate pre-mediation telephone call with the mediator (as well as one with opposing counsel) is recommended. Helpful topics for briefing and/or pre-discussion: whether parties will begin mediation together or separate, who will be in attendance (including insurance representatives or experts), status of discovery, pending legal and factual issues, personality issues and dynamics, and confirmation of amounts included in claim. A strategic question – how much information should be provided to the mediator regarding the party’s settlement range and bottom line? Keep in mind that while a mediator should be maintaining anything told to them in confidence unless authorized to disclose, mediation is a structured, but fluid, negotiation, and your client is paying for it. It’s up to you what to divulge and when.
What and Who to Bring to Mediation.
In fact-intensive cases, and subject to cost considerations (which can be very significant), expert attendance can be helpful; but if that decision is made, ensure that the expert is prepared, and that a corresponding expense or effort will be incurred by opposing counsel to justify the expense. Alternatively, affidavits, expert reports, and/or deposition transcript excerpts can come in handy. Remember that while mediation communications are confidential, material which is otherwise discoverable isn’t rendered confidential merely because it was introduced in mediation. Therefore, if there truly is a “smoking gun” that the other side doesn’t realize you have, you have a strategic decision whether to reveal it in mediation. Bring the operative contract and policies, highlighting the key provisions, and have copies ready to hand out, along with any key legal decisions and discovery responses bolstering your position. Have a draft settlement agreement on your laptop together with the key provisions your client will require, including the new 1542 language and confidentiality clause if applicable. Be prepared to talk about the case; rehearse if necessary. Good luck!
Kirk Yake is a mediator and arbitrator with ADR Services, Inc.