When preparing for a multiparty mediation, the following items 6 through 10 should be addressed by the mediator with the parties and their attorneys in advance communications.
Item Six. First Offer Arrangements.
Common questions about the first offer in a mediation are:
(1) Which party will make the initial offer at the initial mediation session?
(2) A common practice is for the claimant to go first; should that practice be followed here?
(3) Could the first offer be prepared in advance and ready to present when the mediation session begins?
(4) Should the mediator work with the first-offer party and attorney in advance of the mediation session toward developing the offer?
Item Seven. Non-Monetary Terms.
Non-monetary terms are often as important to a settlement as monetary terms — sometimes more so:
What non-monetary terms might be important in this mediation?
Item Eight. Documenting the Settlement.
Once a settlement is reached:
(1) What document(s) will the parties use to confirm settlement details — a term sheet, a settlement agreement, something different?
(2) Will attorneys work together on an advance draft of such documentation (with blanks left open) to identify issues and focus discussions at the mediation session and to minimize drafting needs at the end when everyone is tired?
(3) Perhaps the attorneys could even resolve some issues — and fill in a few blanks — during the document-preparation process?
(4) Are the parties open to concluding the mediation with essential issues resolved but a comprehensive settlement agreement yet to be drafted?
Item Nine. One or More Mediation Sessions.
If all issues cannot be resolved in a one-day mediation session and additional sessions are needed:
(1) Does the next session need to be in-person, or can it occur by telephone or video conference?
(2) What scheduling details need to be considered?
(3) Might a separate session be useful for parties who have related-but-separate issues that don’t materially affect other parties — i.e., no sense wasting everyone else’s time?
Item Ten. Use of an Assistant Mediator.
Are the parties open to utilizing both a lead mediator and an assistant mediator to enhance the efficiency and effectiveness of the multiparty mediation process? If so, is the proposed mediator:
(1) Open to using an assistant mediator?
(2) Experienced in utilizing an assistant mediator and creating an efficient division of labor between them?
(3) Willing to negotiate an acceptable fee arrangement?
Action Item. Issues relating to first offer arrangements, non-monetary terms, settlement documentation, number of sessions, and use of an assistant mediator need to be discussed in advance by the mediator with parties and their attorneys to prepare for multiparty mediation sessions.
Advance communications on subjects identified in this three-part series will significantly enhance the efficiency and effectiveness of 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).