Preparing your case for mediation can be as important as preparing your case for the courtroom. In order to have a successful mediation, everyone must be prepared and this includes the mediator. In advance of the mediation, the mediator should have enough information from all sides in order to be able to facilitate a successful mediation. However, this does not mean the mediator must be aware of every fact. Information is often learned during the mediation that the parties and the mediator may need to discuss.
What is the most effective way to to prepare the mediator for the mediation? In my opinion, by providing the mediator with a brief and candid confidential mediation statement.
So, what should the mediator know in advance of the mediation and what should be included in the confidential mediation statement? I think this information can vary mediator-to-mediator. The information I look for is:
- a brief summary of the relevant facts;
- procedural history;
- legal issues that may have an impact on the case;
- strengths and weakness (and, yes, most cases have them);
- the status of negotiations; and,
- any other information you believe the mediator needs to know about that may help the mediator resolve the case.
This is not an all-inclusive list. I am sure there are other subjects, topics, etc. that you may think are important enough to be included in the confidential mediation statement.
Can you send the mediator your entire case file? Certainly. If you do, in my view, unless you say otherwise, you are indicating to the mediator that you want the mediator to take the time to review and study the information you provide to the mediator. You can reduce the costs of the mediation by taking the relevant information from the case file and including that in your confidential mediation statement.
The result? Hopefully, you are more prepared for the mediation by preparing the confidential mediation statement and the mediator is as well. Mediation is an important day for the parties in litigation and I think it is critical to have the mediator as prepared as reasonably possible.
Tommy Santel is a co-founding partner of Parkerson Santel PLLC. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator. Tommy’s practice areas include criminal defense and civil litigation.
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