1) Clarify the Issues in Advance of the Hearing: Litigation can be messy. Mediators should take care to completely and accurately understand the status of the claims and the parties to the dispute before the hearing begins. For example, sometimes you'll receive a brief where certain defenses are vigorously asserted, yet have not been raised by the pleadings. Are they really alleging fraud or do they just think the Defendant lied to them? Has the Court already ruled that the claim is not barred by the statute of limitations or is it really possible it will get thrown out before trial?
2) Pre-Hearing Telephone Conferences: Both litigators and mediators should be deliberate about talking to one another before the mediation about those nuances that have kept the parties apart. What are the dynamics between the principals or lawyers that have become obstacles? What evidence has already been produced and what is still unknown or unclear? What does your mediator really need to get your client the best result at the hearing?
My colleague and client, Alex Craigie recently interviewed "Six Top Neutrals" for his blog, "At Counsel Table" (including me, thanks Alex!). In all six, both Mediators and Counsel agreed that preparation for a successful negotiation is paramount. In this week's featured Neutral Profile in the Los Angeles Daily Journal, my friend and colleague, Scott Markus was noted for his pre-mediation telephone conferences with each side, which sets the stage for positive outcomes.
Happy New Year and pick up the phone before you attend your next mediation. There are still a few things that can not or should not be communicated via e-mail or in writing!