Mediation Possibilities 2

In Mediation Possibilities 1, I talked about mediation as process, not just event. The elements of the process include mediator selection, pre-session calls, pre-session submissions, convening, caucusing, concluding and follow up. Because mediator selection is best explored after you decide the kind of process you want, I am leaving that for a later post.

So let’s talk pre-session calls with the mediator. In my opinion, this is the most under-rated tool in the mediation process toolbox. How could something as seemingly simple and mundane as a phone call have a strategic impact on your mediation? Fundamentally, pre-session calls give you the opportunity to plant the seeds for the kind of conversation you or your client needs to have in order for a mediation to be productive. Here is where you get to highlight issues of importance, other business or emotional concerns that may be a factor in whether settlement can be achieved, coverage issues that an insurer may have raised. Here is where the mediator learns whether negotiations are starting from scratch or whether there were previous demands and offers. Here is where the mediator learns if there are information gaps that are presenting a challenge to one side completing its evaluation. And if nothing else, it starts the process of getting to know your mediator and developing a working relationship before the high stakes day of the session. These are just some of the strategic opportunities. Pre-session calls are also where you work out much of the remaining pre-mediation process with your mediator. This is where you decide on the type of submissions - confidential or shared or a combination - and any specifics about the submissions. Give some thought to whether this should be a lawyers only event or lawyers plus client. Give some thought to whether you want a separate ex parte call that would include your client with the mediator. There are a lot of possibilities, depending on what you want to accomplish.

But not all mediators have these pre-session calls. Many do. But some don’t. Of those who don’t, some are very well established and very successful with long track records of successful mediations. Of those mediators who do have these calls, some have a fixed way of doing them - only joint calls or only separate calls - or time limited or fixed in number. Others are flexible and determine need in collaboration with the parties. When you are selecting your mediator, It helps to be aware of the kind of process you want. So there - I did sort of get back to mediator selection after all. As I will in subsequent posts on other parts of the process. Thanks for reading.