During most of the 22 years that I have been mediating I did not require counsel for the parties to participate in a pre-mediation conference call. It just didn’t seem necessary. It wasn’t mentioned in any of my mediation trainings, save for one. And it wasn’t required in any of the mediations when I was acting as counsel.
About five years ago I decided that I had been making a mistake. And I have been conducting them in all of my cases ever since. No one has ever refused to participate, and the conference calls seem to make the mediations go more smoothly than before.
It has been said that “If you fail to plan, you are planning to fail.” Some of the mistakes that are commonly made when the mediator and the other participants fail to plan include:
The failure to set aside enough time on the false assumption that within a few short hours there will either be an agreement or a hopeless impasse
Not bringing the right people to the mediation, especially the actual decision-makers
Not sending a copy of the mediation brief to other counsel because the mediator is the only person who supposedly needs to read it
Not ensuring that all parties have the information that is necessary for them to make an intelligent evaluation of the case and for adequate settlement authority to be obtained
Not having a first draft of the settlement agreement ready
Mistakes such as these can lead to a mediation that either fails or is more difficult or time-consuming than it should be. A conference call with the mediator and all counsel in advance of the mediation will generally avoid all of these problems, and probably more.
All of the parties and their lawyers must think of the mediation as the most important event in their case and plan for it in a cooperative fashion with the mediator. Don’t plan to fail, plan to succeed!
MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields. His exceptional combination of transactional and litigation experience enables him to handle complex litigation… MORE >
From the Blog of Phyllis G. Pollack. According to the Second Appellate District of the California Court of Appeal, mediation confidentiality does not and will not protect attorney-client communications. In...