The Mediation Process – Initial Conference Call
The purpose of the initial conference call is to provide me with enough information about the case so that proper ground rules can be established for the conduct of the mediation. I usually ask each counsel to give me a brief description of his or her view of the case and an analysis of particular legal issues that need to be addressed. This call is a good opportunity to determine what counsel agree upon and what areas are in dispute. Usually counsel will advise why they are mediating the case. Most often it is voluntary, but sometimes a judge has suggested or ordered the mediation. On other occasions the courts have scheduled a settlement conference before a judge or a judge pro tempore and the parties believe that private mediation will be more productive. Any of these circumstances is something I as a mediator want to learn.
I also want to be advised where the litigation is venued and how far along towards trial the case is. I generally inquire whether the case is ready for mediation or whether further discovery needs to be done. If certain discovery is essential prior to mediation, we need to be certain it is finished by the date of the mediation, though often the reason to mediate in the first place is to avoid that discovery by settling the case. The last item of business for this conference call is to schedule a date for mediation if one has not already been chosen.
Finally, if decision makers are not going to be present in person, I need assurances from the other party or parties that participation by telephone is acceptable to them.
Usually I ask for written submissions a week ahead of the mediation, but if the case has numerous parties or seems complicated, I prefer the submission 10 days or 2 weeks ahead of time. Generally my preference is that the mediation submissions are shared among all parties, with any party reserving the right to submit certain additional items on a confidential basis for my eyes only. If any lawyer in the case wants the entire submission kept confidential, I usually impose that restriction for all. In my experience, however, it often turns out that there is little reason to keep total confidentiality because most of the information has come out in discovery.