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"Mediation readiness" agenda - What are you thoughts?

What might an effective "Mediation readiness" agenda contain?

Please provide your thoughts/comments below.

Thank you Harold Coleman of AAA Mediation.org for contributing this week's question.

Comments (6)

Ty Holt:

An essential element of the preparation for a construction or commercial mediation conference is a Pre-mediation conference call among the Mediator and counsel for the Parties to: 1) discuss issues to be mediated; 2) exchange of materials, if any, needed to get the parties prepared for the conference; 3) set the date for the conference; 4) set the date and nature of the submission of the Parties' mediation conference submissions; and 5) any other issues and topics needed to get the Parties ready for the mediation conference.

Patricia Cowett:

Read and reread the mediation briefs with an eye toward seeing if you have specific questions to ask the attorneys in a premeditation call and with an eye to start thinking of out of the box solutions in addition to traditional ones that will help the sides reach resolution.


I’m not sure how to respond. Obviously mediator needs to have enough knowledge and information to proceed. Probably more important is whether parties and counsel are ready. Much harder to ascertain. There is no simple test even though all will tell you they are. This is where your judgement and experience come in. It’s not an exact science. I always believe your people skills are the most important to get it done.

I have a standard "Pre-mediation Teleconference Agenda" that I send to the parties in advance of our initial teleconference. In combination with an introductory email, it sets the tone for the discussion and lays the groundwork for the agreement of the parties as to process, document exchange, etc. Based on input during the teleconference, I write a "Preliminary Mediation Teleconference Agreement." It covers all of the issues mentioned by Ty. So often, at the point they file for mediation, parties and their counsel have not thought through the issues involved dispute or the information they will need to make an informed choice about a settlement. An effective premediation teleconference focuses the parties on all of these issues so they know when they arrive at the mediation session they have all of the information they believe is meaningful to their decisionmaking process. In 2015, Conna Weiner, Kristen Blankly, Kim Taylor and I gave a session at the ABA Dispute Resolution Section Annual meeting on "Convening a Mediation." I am happy to make the templates I created for that program avaiable to anyone who might be interested.

Reach out to the party representatives - by phone or in person - to learn what the issues in dispute are. Meet with the parties and their lawyers ahead of the mediation if the case is complex. Learn from each side whom that side wishes to be present from the other side, and then confirm participants from each side to the other side. Everyone should be present who is essential to resolution, and no one should be present who is objectionable. Set a mutually agreeable date(s) and venue for the mediation and be sure everyone has the whole 24 hour period available, unless otherwise agreed. There should be no surprise at the mediation that someone has a 5:00 o'clock flight home. Request a confidential mediation memo from each side outlining: the facts of the dispute and the issues in dispute; the law supporting each side; the procedural status of the case; the history of settlement negotiations (if any); what you think the other side wants from mediation; what you think your goals are in mediation; hot button issues; hot button people. Prepare enough food and drink for the mediation so that participants can maintain sustained attention. Be prepared at the mediation to demonstrate total command of the facts of the dispute, unflagging energy, enthusiasm, and optimism that a creative solution can be reached.

Eric H. Holtzman :

Adding to Ty Holt’s post, the preliminary conference should also be used to ensure that the best or most correct people attend the mediation session. Each side should disclose its proposed attendees and the other side asked whether it believes that other or different people should attend. I always describe the preliminary conference as being devoted to ensure that pre-session activities are best calculated to maximize the prospects for a successful session. If anyone is traveling from out of town to attend the session, I try to have everyone agree to schedule the session for two contiguous days.

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