| At this point in the life of your case, your mediator has | | | | that what is shared in private session will be disclosed |
| been selected, the discovery should be nearly | | | | to the other side unless instructed otherwise. Be sure |
| completed, and you have now had an opportunity to | | | | that the mediator understands your requirements for |
| confirm with your client the facts giving rise to the suit. | | | | confidentiality including any reports or exhibits that may |
| So, it is a good time to create a case statement for | | | | be attached to your case statement. Confidentiality |
| the mediator and a short outline to be used during | | | | often gets confused by inexperienced parties as a |
| mediation. Combined with some legal research and | | | | form of secrecy similar to that with international |
| comparable case value reviews, you should be set to | | | | diplomacy. Use confidentiality as a tool to allow for |
| mediate and settle your case. Whether you are doing | | | | candid discussions. |
| a private mediation by stipulation, a limited mediation by | | | | Do Research of Law and Case Value |
| order of the court or an early settlement session from | | | | Prior to mediation, research should be conducted in |
| a CMADRESS order, don't put off getting a real | | | | order to assist the direction of the case. This should |
| handle on your case. | | | | include recognizing what the other side will present by |
| Case Statement and Outline | | | | way of potential motions in-limine and jury instructions. |
| The importance of a case statement for mediation is | | | | Anticipate attacks on your case strengths and be |
| often underrated. Many statements are prepared | | | | ready to rebut claims of weaknesses. Be sure to have |
| almost in haste or at the last minute. However, this is | | | | handy references to discuss any credits, offsets, liens, |
| the opportunity to make a pre-opening statement | | | | discounts, responsibility for breach of contract, |
| similar to that of a trial brief. Using this as the format | | | | mitigation of damages and comparative fault. Bring |
| can become a road map to be followed at the | | | | specific deposition testimony excerpts, discovery |
| mediation. The mediator will benefit from the efforts of | | | | responses, reports, case sites and/or statutes for |
| a detailed statement instead of a quick, cut & | | | | presentation to the mediator. This work will take a |
| paste attempt. A few more details will give the | | | | small amount of time to help make for a very |
| mediator a better understanding of each side's | | | | productive and beneficial mediation. |
| perspective. In that way, the mediator is not left out in | | | | In addition to doing a work-up on legal research look |
| the dark about the nature of the case prior to | | | | for verdicts and settlements of same or similar cases. |
| commencement. Brevity is always appreciated but | | | | Merely bringing monetary values without factual |
| more details are helpful. And get it done well in | | | | support can produce unfavorable results in |
| advance instead of just a day or two before the | | | | negotiations. Don't bother bringing in verdicts and |
| mediation. | | | | settlements from out of state jurisdictions. Spend a little |
| As for the outline, this is intended as a reminder | | | | extra time doing the research on actual verdicts and |
| throughout the course of the mediation. Utilizing bullet | | | | settlements that truly are comparable. And be ready |
| points, this condensed outline can highlight essential | | | | to offer discussion as to why these cases you are |
| facts, witnesses, reports, case strengths and | | | | highlighting support your suggested value. |
| weaknesses. This will keep participants on track for | | | | Legal research has gone leaps and bounds by use of |
| their own direction in order to stay with the big picture | | | | the internet over the past decade. Formerly, flipping |
| of the entire case. Often during the course of | | | | through countless Daily Journal verdict and settlement |
| mediation, information is presented by one side or the | | | | reports by hand or talking to colleagues was the only |
| other that may be viewed as unnecessary and | | | | way to research case value. Now, the internet |
| unwarranted, resulting in mental distractions and for | | | | streamlines this research to make it an almost |
| some a waste of time. Using the short, condensed | | | | effortless process. While looking at case values, also |
| outline maintains focus throughout the entire mediation | | | | look at experts used in comparable cases. Being able |
| irrespective of what is actually discussed by the other | | | | to show that one expert or another has been |
| side. | | | | successful or less than prevailing can be influential in |
| Use Confidentiality as Your Tool | | | | your negotiations. And all of this can be done quickly |
| Rules of confidentiality should not be viewed as a | | | | and easily on the internet well in advance of mediation. |
| hindrance to discussions. When parties unfamiliar with | | | | Conclusion |
| mediation first hear the word "confidentiality," they | | | | Don't get caught at a mediation using your cell phone |
| sometimes become withdrawn believing all information | | | | to contact your office about critical case information. |
| should now be secret and protected from disclosure. | | | | You don't want to find yourself wishing you had done |
| They take on an almost hush, hush, don't tell attitude. | | | | a little more prep. Extra work ahead of time can go a |
| Evidence Code §§ 1115-1128 set out | | | | long way for case resolution. Provide to the mediator |
| confidentiality for mediation. Become familiar with these | | | | a detailed case statement well in advance. Create a |
| statutes. Case statements can easily be titled | | | | short outline highlighting selected subject areas as your |
| "confidential" preventing any and all disclosure to the | | | | own guide during the mediation. Assure clients that |
| other side. If that is your choice, it will be followed by | | | | confidentiality does not mean secrecy. Finally, do some |
| the mediator. | | | | internet research on law and comparable verdicts and |
| In the joint and/or the first private session, confirm with | | | | settlements. Being truly ready for mediation will not only |
| the mediator the guidelines of confidentiality that you | | | | help you but will assist the mediator in trying to facilitate |
| want used. If this is not done, inadvertent disclosures | | | | resolution. Help the mediator so they can help you |
| could happen causing potential harm in the handling of | | | | settle the case. |
| your case. Many mediators work on the understanding | | | | |