Detailed Explanation of Mediation Checklist

The purpose of this checklist is to assist counsel in preparing for mediation. Preparation is paramount! Proper preparation assures that results will meet expectations.

The Checklist can be broken down into the following sections:

Section I - Site Selection, Participants, and Status
Section II - Your Case
Section III - The Other Side
Section IV - Settlement Considerations
Section V - Matters Discussed in the Mediation Session
Section VI - Post-Mediation Activities

Section I - Site Selection

• Location:
  • Selecting the appropriate site for the mediation is a critical first step. Always make sure that your site has enough space and the proper equipment to accommodate the needs of the parties. Consider the psychological impact of the site on the parties. Try to ensure that the site is neutral and convenient to both parties.
• Parties:
  • It is essential that the ultimate decision-makers attend the mediation. Both sides should have representatives at the mediation who have authority to settle. At the very least, settlement authority must be available by phone. See however, Nick vs. Morgan’s Foods, Inc. 99 F.Supp. 2d 1056 (E.D. Mo. 2000) affirmed by Nick v. Morgan’s Foods, Inc., 270 F.3d 590 (8th Cir. Mo. 2001).
• Other Important Contacts:
  • The Mediator-Counsel should be certain that the mediator is well trained and experienced. Counsel should be aware of the mediator’s style.
  • If there is a possibility that a structured settlement will be offered during the mediation, then a deferred payment specialist should be available, if not present.
  • If medicals will be disputed and it is possible to have a doctor on call, this may be an effective tool to use during the mediation.
  • Medical Liens and Worker’s Compensation Liens can prevent settlement. Having the lien holder representatives on call can make the difference between settling and going to trial.
  • Miscellaneous-Witnesses who can clear up a complicated issue, family members, trusted friends-all can help facilitate a settlement. Most should be willing to participate if it means that they can avoid appearing at trial. Follow up in writing with those individuals that you want to have on call and provide them with the time and date of the mediation and make sure you have their phone number.
• Case Status:
  • Always be aware of case status. If the statute of limitations is going to run out on Thursday, then don’t worry about Friday’s mediation. Look to your pleadings and make sure that the court proceedings are proper. Check to make sure that you have properly joined any third parties. You can always announce any recent changes in your opening statement at the mediation. If there is a mistake in the pleadings that you will be correcting, be sure to mention this in your opening statement.

Your Case

• Liability Issues should be raised, examined, and a position prepared based on a fair and reasonable interpretation of the facts.
• Evidence: Identify and determine the importance of all documents and evidence that is to be discussed during the mediation session. Copies of important evidence should be prepared IN ADVANCE for the other party to review.
  • Consider if your client has given any prior statements
  • Does the official police report favor one side or another?
  • Are depositions and medical records catalogued and copied
  • Highlight the significant portions of pertinent documents. This showing of preparation will do more than simply save time, it will also indicate to the other side and your client that you are taking the mediation seriously.
• Itemization of Specials: Settlements are often based on the amount of specials, although no one likes to admit it.

The Other Side

Strengths & Weaknesses: Listing the strengths and weakness of each side is an essential part of mediation preparation.

Settlement Considerations

• Prior to the Mediation:
  • Get the documents that you need and send the documents that the other side has requested. No insurance company will make a settlement offer unless there is documentation in their file. Make sure that the other side receives your documentation with sufficient time to review it.
• Determining the Value of the Case
  • To make as accurate an estimate of the claim as possible, one must consider all of the legal and factual issues that would arise at trial. Consult with colleagues to arrive at a good estimate. By grounding yourself in the economic reality of the claim, you are better equipped to advise your client and challenge the other side.
• Review the history of prior offers and demands in the case up to this point. If no offers or demands have been made, try to ascertain why.
• Before entering the mediation session, explain to your client how the process will work. Counsel them about what they should expect, and consult with them to find out what issues (monetary and non-monetary) they consider the most important. Non-monetary concerns often hinder settlement, and need to be discussed thoroughly. Talk to your client about the settlement authority that you will require. If you are having serious problems with a client, consult with the mediator prior to the mediation to let them know that a problem exists. The mediator might be able to make helpful adjustments.
• Make certain that you and your client agree as to the first number to offer at mediation.
• After all of the pre-mediation work has been completed, prepare your opening statement.

Matters Discussed in the Mediation Session

• Keep a ”diary” of the mediation. Study the trends in the demand/offer cycles and see if a pattern emerges. See if you can ascertain where the other side is heading. Keeping detailed notes may help you identify previously unconsidered issues.
• Make sure that the mediator follows your instructions throughout the negotiation. If you ever feel that the mediator is not following your instructions, immediately ask them to explain why he/she is not doing so.
• Keep track of the offers and demands during the negotiation.

Post Mediation Considerations

• If the case settles, then good practice dictates that the parties sign a settlement agreement
• If the case fails to settle, review the alternatives available, including the use of other ADR techniques, before you go to court.

Example of checklist in HTML
Download checklist in MS Excel format

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