by Joseph J. Sullivan, C.S., Sullivan Mediations

When should a mediator suggest a conference call between counsel before a scheduled Mediation? Sometimes on multi-party or complex mediations, a conference call some time before a mediation may establish some ground rules for more complicated litigation. Such calls can save valuable time on the morning of a mediation.

A few comments:

Mediation Agreements are often not signed until the “morning of” the mediation (hopefully with strong confidentiality clauses). Discussions that take place before the Agreement is signed should proceed with great caution if such discussions deal with any substantive issues. Ideally, the parties will have signed the Agreement before a phone call, but sometimes this doesn’t occur. The parties ought to at least verbally agree early that discussions are confidential. More importantly, pre-mediation discussions should deal with procedural issues only unless the Agreement is signed.

In complex multi-party mediations, it is wise to consider how the mediation will proceed rather than sort out such details at 10:00 a.m. on the mediation day.

A pre-mediation conference call amongst counsel and the mediator could address the following:

• Can any issues be resolved beforehand such as working out a liability split in a tort action so the mediation can just deal with damages?

• Has adequate documentary disclosure been made?

• Agree on any outstanding nagging insurance coverage issues.

• Have income tax ramifications been considered? (This is especially important in estate or wrongful dismissal cases).

• Do the parties wish to have one open general session with all parties where a list of all issues can be listed? This can also highlight the extraordinary legal costs of a trial and this will demonstrate risks of not settling.

• The parties can discuss whether to have formal openings and if so, on what issues. In commercial or employment cases, these are often skipped.

• After an open session, will the parties split into separate rooms and how will offers be exchanged with various claimants?

• Is a second mediator needed? What will her role be?

• Establish the parties’ expectations of mediations. Are there any special closing settlement terms (i.e. income tax issues, confidentiality clauses, right to structured settlements, payment of past disability or accident expense claims)?

• Who will pay the cost of the mediation?

• In injury cases, is there companion litigation (accident benefits, long term disability claims) and how will those be handled?

In conclusion, a quick pre-mediation telephone call can create acceptable ground rules that can allow the parties to move more quickly to the substantive negotiation on the actual morning of mediation.