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M E D I A T I O N P R O C E D U R E S A N D R E Q U I R E M E N T S
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Prior to the Mediation
Briefs
7 business days prior to the mediation parties are required to submit mediation briefs. The
briefs should not exceed more than 10 pages. They should include the pertinent facts,
the claims, the relevant issues with regard to parties’ positions and the assessment of
damages. The briefs also can include a short litigation history and summary of settlement
negotiations, and the potential obstacles preventing the settlement. The briefs will be
deemed as confidential, unless parties agree otherwise.
Preparation
It is customary prior to the mediation to convene the case. Therefore it is recommended that
parties or/and their attorneys would communicate with the mediator, educating him or her
about the agenda and the nature of the case. Parties may also inform the mediator about
the status of the relationship between the parties and the relationship and communications
with their attorney’s. Similarly, attorney can describe their relationship with their clients and their
relationship with the opposing counsel. Finally, both parties and their representatives must provide
the list of the participants in the mediation.
Who Should Attend
It is essential that those decision-makers who have the authority to sign the settlement agreement
must participate in the mediation. All parties involved in the dispute, their attorneys (if the parties
seek the representation), insurance carriers, or company representatives must also be present. If
necessary, expert witnesses would be allowed to testify.
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During the Mediation
Confidentiality
All statements made in the course of mediation are confidential (Evidence Code §§ 1115 through
1128). All parties will agree that any statements made, or information disclosed to the mediator,
whether in joint session or in private caucus is confidential, and that disclosure cannot be compelled
under any circumstances (Evidence Code § 703.5). Prior to the start of the mediation, all participants
will be asked to sign a mediation confidentiality agreement.
Mediation Process
A. Introduction
During the first phase of mediation all participants will join together to hear the mediator explain
the process of mediation. The opening statement will address
1. The necessary paper work (The Confidentiality Agreement, The Agreement to Mediate)
2. The Role of the Mediator
3. The Role of Participants
4. Confidentiality
5. Logistics (When to take breaks)
6. Ground Rules
7. Joint Session and Private Caucus
B. Addressing the Dispute or Conflict
Next, each side will have an opportunity to explain the situation from their perspective. It is
between the attorneys and their clients who will present the case. While it is quite typical that
the attorneys will start, parties will be encouraged to participate. During the Joint Session when
all participants are together parties could talk to each other to enhance the quality of communication
and to participate on the solutions. During the mediation participants might speak to the mediator
without the presence of the opposing party. This is called the Private Caucus. During the caucus
parties might share the information, which they don’t want to disclose in front of the other side.
C. Negotiations
After both factions presented their side of the story the negotiation phase will commence.
Here both parties under the advisement of their attorneys will propose the options, and articulate
and substantiate their offers. During the private caucus the mediator may help with reality testing,
letting parties to acknowledge weaknesses and strengths of their case, and making sure that they
do not make unsubstantiated and outrageous demands or offers.
D. The Settlement Agreement
It is desirable that parties reach an agreement. They can reach the Settlement Agreement during
one session or they might continue mediating as long as they believe that the Agreement is possible.
It is the commitment and the perseverance of the mediator to make sure that all was done to settle
or to resolve the conflict. The settlement agreement should be drafted by the parties with the
assistance of their attorneys. Optimally, the mediation should end up with the Agreement to the
satisfaction of all participants.
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