Crafting the Effective Mediation Summary

Download Crafting the Effective Mediation Summary

Post on 07-Dec-2014

68 views

Category:

Law

0 download

DESCRIPTION

You don't go to trial unprepared. Your judge doesn't preside over your trial unprepared. And most cases resolve at mediation rather than trial. So why would you go to a mediation unprepared or without preparing your mediator? Learn the who, what, where, when and why of mediation summaries and let Howard Marsee give you some tips regarding content and the do's and don'ts of preparing this important mediation tool.

TRANSCRIPT

  • 1. FAQs, Considerations, Psychology, and Suggestions Howard R. Marsee Copyright 2014
  • 2. WHO? WHAT? WHEN? WHERE? WHY? Howard R. Marsee, Upchurch Watson White & Max 2
  • 3. WHY? WHO? WHAT? WHEN? WHERE? Howard R. Marsee, Upchurch Watson White & Max 3
  • 4. WHAT IS MY GOAL? NO SINGLE RECIPE BAKES EVERY CAKE. GOALS MAY VARY FROM CASE TO CASE. Howard R. Marsee, Upchurch Watson White & Max 4
  • 5. Do I need a summary at all? How complex are the facts or issues? Prepare the mediator to advocate my clients cause? Self education? Educate my client? Educate the opposing party? Create a framework for negotiation? Establish a template for settlement? Howard R. Marsee, Upchurch Watson White & Max 5
  • 6. Closely intertwined with the questions of why and what. Who gets the summary may depend on why I am crafting it. What goes into the summary may depend on the intended recipient. Howard R. Marsee, Upchurch Watson White & Max 6
  • 7. To the mediator only? Should I place restrictions on the mediators use of the summary? The mediator and opposing counsel? To co-defendants or other parties? My client? Should I consider sending different versions to different recipients? Howard R. Marsee, Upchurch Watson White & Max 7
  • 8. The content of the summary is directly dependent upon my goal and the intended recipients. Howard R. Marsee, Upchurch Watson White & Max 8
  • 9. What if I have no intention of settling and dont want to share information with opposing counsel? Will the summary be read by the opposing party ? What effect will the summary have on my client? Why not substitute my motion for summary judgment, my suit report or the pleadings in the case? Howard R. Marsee, Upchurch Watson White & Max 9
  • 10. Identify all parties and their respective roles. Identify all counsel and any known mediation attendees (and their roles). Enough detail to help the mediator effectively advocate my clients cause. A carefully reasoned analysis that demonstrates my mastery of the facts and law in the case. Howard R. Marsee, Upchurch Watson White & Max 10
  • 11. A general statement of my clients goals at mediation. For the mediator, any obstacles to settlement or special problems. For the mediator, any client control problems (any parties). Any insurance coverage or solvency problems. Howard R. Marsee, Upchurch Watson White & Max 11
  • 12. Any special provisions or contingencies that the settlement agreement must address. Whether a partial settlement is an option. Whether a structured settlement is an option. The background of past negotiations or mediations. Howard R. Marsee, Upchurch Watson White & Max 12
  • 13. Ad hominem attacks on parties or counsel. Over-the-top hyperbole. Misstatements of fact or law. Overly rigid declarations of positions or intentions. Invective. Statements designed to throw gasoline on the fire. Howard R. Marsee, Upchurch Watson White & Max 13
  • 14. When is dependent on why and who. Do I expect that opposing counsel will send a copy to his/her client? How complex is the case? Does the mediator typically get involved in the case prior to the formal mediation session? Does my client need time to digest the summary? Howard R. Marsee, Upchurch Watson White & Max 14
  • 15. Am I providing copies to co-defendants or other parties? What has the mediator requested? What has the court ordered? The principle of primacy? The principle of recency? The need for action, prior to mediation, by the mediator or other parties. Howard R. Marsee, Upchurch Watson White & Max 15
  • 16. Why not simply have my motion for summary judgment serve as a summary? When should I provide the mediator with copies of pleadings? Cant I substitute copies of pleadings for my mediation summary? Should I tell the mediator in the summary what my absolutely best settlement number or position will be? Howard R. Marsee, Upchurch Watson White & Max 16
  • 17. Should I designate my summary to the mediator confidential? Should I ever file the mediation summary with the court? Who bears the mediators fee for review of mediation summaries? Do mediation summaries make a difference? Howard R. Marsee, Upchurch Watson White & Max 17
  • 18. Plaintiffs: Ignoring relevant insurance coverage limitations. Defendants: Over emphasizing liability defenses and losing sight of damage issues. Both plaintiffs and defendants: failing to prioritize and refine the issues ( a blunderbuss versus a rifle- shot approach) Both plaintiffs and defendants: failure to be concise, objective and calm. Merely reciting a line item review of discovery. Howard R. Marsee, Upchurch Watson White & Max 18
  • 19. Brief recitation of the underlying facts. Present posture of the case. Recent developments that may impact resolution of the case. History of efforts to settle. Summary of respective legal positions. Assessment of respective strengths and weaknesses. Creative solutions available. Howard R. Marsee, Upchurch Watson White & Max 19
  • 20. Identify parties, representatives and counsel who will attend mediation. Describe any sensitive issues that may impact resolution. Prior/ future relationships of the parties. Negotiating strategy of parties and counsel. Suggested approaches youd like the mediator to try. Howard R. Marsee, Upchurch Watson White & Max 20
  • 21. A good negotiator realizes that negotiation is persuasion and that we dont persuade by intimidating, abusing, badgering, shouting, insulting, degrading or attacking. This principle is especially applicable to the written word. It remains on the printed page long after memories have faded. Howard R. Marsee, Upchurch Watson White & Max 21
  • 22. Thank You For Joining Us. Upchurch Watson White & Max Mediation Group Daytona Beach Maitland/Orlando Jacksonville Miami Fort Lauderdale/Plantation West Palm Beach Please email cklasne@uww-adr.com with questions about course number, PDF, etc. Please contact Howard at hmarsee@uww-adr.com with questions or comments regarding content. 22