The Mediation Process – Engagement Letter and Overview
Ordinarily, a new mediation arrives in my office because of a telephone contact, email or letter from one of the lawyers in a case who has secured the agreement of the others to have me serve as mediator. My procedure is to ask the referring lawyer to forward a caption of the case, assuming it is in litigation, and a full roster of all of the parties and their counsel. Ordinarily I will ask for the identities of any insurance carriers as well. Once conflicts have been cleared or identified, I send a relatively simple engagement letter to counsel acknowledging the request to serve as mediator, and advising them that I am able to serve. If there are any actual or perceived conflicts, I will explain them in the engagement letter to see whether any issues remain.
The engagement letter will advise of my fee arrangement to which I will ask all of the attorneys to agree. My usual practice is to charge a total hourly fee to be divided as the parties agree. Usually that division is pro rata among the number of lawyers involved. The hourly rate covers all work performed, whether in preparation for the mediation, the mediation itself or any necessary follow up. I always advise counsel that if the case does not settle at the mediation session, we can and will continue our efforts, until the case settles or until it is clear that we cannot reach an agreement. I do not charge by the number of parties involved as some ADR providers do.
Generally, especially if I know the lawyers involved and have worked with them before, I do not require retainers or deposits so long as the parties agree that my bills, when submitted, will be payable upon receipt. Recently, I have begun to advise counsel that if they are representing carriers or corporations who prefer to defer bills 60 or 90 days before payment, this practice is unacceptable. It has caused many ADR providers to demand retainers “up front” but at the time of this writing, I am generally resistant to that approach.
Procedurally, my practice is to set up a conference call as soon as the parties return signed copies of my engagement letter. I use the conference call to learn something about the case, and to set the ground rules for the mediation. My primary concern is to learn who will be present at the mediation. It has become evident over the years that it is usually more difficult to settle cases when decision makers are not present in person, and when they are able to hide behind telephone lines. I am also careful during these conference calls to raise issues of outstanding liens or other interests of third parties to the litigation who will not be participating in the mediation. During the conference call we will schedule a date for the mediation if one has not been chosen before the call, and we will also set a date (usually a week to 10 days ahead of the mediation) by which mediation submissions will be provided.
Mediation submissions should consist of a concise memorandum in normal form which sets forth the factual circumstances of the case, any controlling legal issues, a full explanation for the damages sought or defended against, and any history of prior demands and offers of settlement. If there is no negotiating history, at least a demand by plaintiff should be made. Exhibits such as expert reports, medical records and relevant discovery should be attached as exhibits, where necessary.
I always assure counsel that I will have read everything they send me before the date of the mediation. One of the most common complaints I get concerning the mediation process is that too often, counsel and their clients arrive and the mediator is looking at documents for the first time while everyone watches him or her read the file. That should not and will not happen.
Finally I ask for the agreement of counsel to communicate by telephone, email or (only if necessary) by fax. In the event that actual letters are required, transmission by email is faster, and easier to assure delivery.