Bar News - October 6, 2006
Mediation How To Navigate Your Way to Successful Mediation in Civil Cases
By: William A. Mulvey, Jr.
The mediation process is intended to allow the parties in a dispute to come to a compromise resolution. Everyone in the mediation process must work to achieve that goal. All of the decision makers must be present at the mediation session to maximize the opportunity for resolution. If anyone in the process does not desire a compromise resolution and truly desires a trial, mediation will not be successful and is a waste of energy, time, and money.
Mediation will generally not be successful until all sides are convinced that sufficient information with respect to all significant issues is known. Therefore, for mediation to be successful, in the civil litigation context, the following must be exchanged in advance at the mediation session:
• Economic loss documentation;
• Relevant employment records;
• Relevant contract documentation;
• Relevant medical records;
• Relevant medical expense documentation;
• Procured expert reports;
• Relevant lien information.
It is crucial that all documentation that will be relied upon at the mediation be exchanged at least three weeks in advance of the mediation session. That documentation must be reviewed and analyzed by counsel and, in most cases: clients, corporate representatives, consulting experts, and/or insurance professionals. Providing the documentation a few days in advance of the session will not allow the appropriate consideration and will not allow corporate representatives and/or insurance professionals to obtain appropriate authority.
The mediator should receive a short summary of the significant points in the dispute (i.e., liability, economic loss, medical causation) and, if there are crucial documents—expert reports and/or accident reports—they should be attached. The federal courts mandate a confidential settlement memo. In complex cases such a memo is very beneficial to the mediator and will allow the parties to express their actual positions, actual goals, and perceived weaknesses, as opposed to their public positions, goals, and strengths.
The mediation summary and attachments should be submitted to the mediator and counsel at least seven days before the mediation session.
The mediator does not need volumes of material. Remember the case is not being tried; it is being mediated.
Most mediation sessions will involve a joint session where all the parties get together. It is in that setting that all of the parties to the process have an opportunity to express their positions verbally. This is a significant opportunity to demonstrate to the opposition the conviction of one’s positions, the bases for those convictions, and at the same time recognize the human and emotional components for all parties involved in the dispute.
The joint session is the opportunity to speak directly with the opposition. This is an extremely beneficial opportunity for all. It is an opportunity that achieves the greatest benefit when all the decision makers for all the parties are present. Thus, every mediation session should involve true decision makers. If a decision maker for a party is not going to be present, that should be specifically discussed and agreed upon. The dynamic of the process is much more effective when the decision makers are present and much less effective when they are absent. The expectation of mediations is that the decision makers will be present.
My experience in handling over 1,500 mediations is that when all decision makers are present the mediation session will result in a successful resolution. The absence of decision makers reduces the likelihood of resolution.
As all trial lawyers know, very few cases are now tried to conclusion. Ninety-five percent of all civil cases will resolve without a final jury verdict. The questions are how, when, and at what cost, the case will resolve. Mediation at an appropriate junction allows the parties to control how, when, and at what cost.
William A. Mulvey, Jr. is an attorney, mediator and principal of Mulvey Professional Association in Portsmouth and chair of the NHBA Dispute Resolution Committee. Contact him at email@example.com.