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Prepare Your Mediator for Mediation
07/24/2012Have you had the experience of having a mediator who is really no more than a messenger? Most of us have, and there are reasons for it. The primary reason is because the mediator was not prepared for the mediation.
In every case, there are usually a few key documents that are the most important. The usual situation is that counsel are well versed in these documents, but they have not been shared with the mediator until the mediation begins. At that point, the mediator is consumed with the process of trying to mediate the case, and really does not have the time or opportunity to review and understand the documents. If they had been made available to the mediator a few days in advance, the mediation would have likely had a greater chance for success.
In a personal injury case the medical records are very important on the issue of damages. Some mediations involve rare types of injuries or medical conditions about which the mediator has very little knowledge. In all such cases the extent and course of the treatment are important issues, as well as the treating and examining physicians' assessments and prognoses. If a life care plan and economic analysis have been done, these are very important as well. There are usually a few key records, such as typed discharge summaries and summary pages from experts' reports, which are very important. The same is true on the issue of liability where key portions of expert opinions or other case specific documents would be helpful to the mediator in understanding the case.
In all construction disputes and other business related cases there are also key documents which are important. These may be excerpts from contracts, key financial documents or other key business records or corporate documents pertaining to the case. Sometimes these documents are not easy for the mediator to digest if he or she has not seen them before the mediation begins. However, if the mediator is furnished with the documents a few days in advance, things will inevitably run more smoothly at the time of mediation.
Think about what you have seen happen when the mediator has not been adequately prepared for the issues involved in the case. Often times mediators are given mediation statements beforehand, without supporting documentation. These statements are generally very helpful, but are often conclusions or arguments from the attorney who prepared the statement. While this is helpful, it is really not enough to arm the mediator with enough information to play "devil's advocate" in your opponent's room. The mediator needs to be able to point to key documents or testimony to help your opponent see your side of the case and examine the weaknesses of his own case. After all, this is the essence of the mediation process...the understanding of the strengths of your adversary's case and the weaknesses of your own case. This is what encourages compromise and settlement.
Arm your mediator with enough information to help him or her to do a good job for you. The investment of a couple of hours of time educating the mediator will save lots of time at mediation and boost the likelihood of reaching a successful settlement. If you do this, the mediator has no excuse for being a hip-shooter or mere message carrier.