Advance communications among the mediator, the parties and their attorneys can be helpful in creating an organization, structure and efficiency for multiparty mediation sessions.
The following are items one through five in a ten-item checklist of the types of subjects that should be addressed in the advance communications:
Item One. Settlement Impediments.
To help parties divert attention from their most-cherished arguments and toward settlement possibilities, each party should provide the mediator with written answers to the following questions:
(1) Why haven’t the parties settled already?,
(2) What settlement possibilities might reasonably be anticipated?,
(3) What impasses and impediments to settlement currently exist?,
(4) What are the costs and risks of failing to settle now?, and
(5) What settlement terms might be negotiated in a mediation that could not otherwise be obtained?
Item Two. Parties.
Absent parties have torpedoed many a mediated settlement:
(1) Are all necessary parties included in the mediation?
(2) Are insurance or other indemnification rights implicated?
(3) Would a party’s absence from the mediation tend to undermine or create problems for any settlement that might be achieved?
Item Three. Information and Discovery.
A mediation session is not the proper venue for fighting discovery battles:
(1) Do mediating parties have all the information they need?
(2) If not, what specific information and documents (not merely generalized categories) need to be produced before the mediation session begins?
Item Four. Use of Joint Sessions.
This is a truism: disputing parties don’t want to spend time together. So:
(1) To what extent are the parties open to participating in joint sessions to streamline and facilitate communications?
(2) May the mediator exercise judgment on bringing some or all parties (or their attorneys only) together in joint sessions to communicate and discuss offers and information?
Item Five. Tax Implications.
In business cases, taxes are almost always a bigger issue than initially anticipated:
(1) Are the parties aware of tax issues or consequences that might arise from a settlement?
(2) Will parties have advance discussions with their own tax advisers to anticipate potential tax issues and consequences?
(3) Will each party have a tax adviser standing by via telephone during the mediation session to address tax issues and concerns that might arise?
Action Item. Issues relating to settlement impediments, parties, information and discovery, use of joint sessions, and tax implications need to be discussed in advance by the mediator with parties and their attorneys to prepare for multiparty mediation sessions.
Editorial Note: this article was originally published by the American Bankruptcy Institute in its October 2015 edition of the Mediation Committee Newsletter (Vol. 2, Num 3).