Mediation defined:  

Mediation is an informal, non - binding process in which the mediator facilitates communication between disputants and assists the parties in reaching a mutually acceptable resolution of the dispute.  In this process, the mediator explores the underlying facts, the relevant evidence and the law, as well as the parties underlying interest, needs and priorites. 

Mediation is a flexible and confidential process that is less stressful than a formal trial.  It can also save time and money, allow for greater client participation and more flexbibility in creating a resolution. 

Mediation works!  It is an  effective way to resolve disputes!      

Pre mediation: 

Briefs are not required, but it is helpful to at least know the facts of the dispute prior to the mediation.  If a brief is prepared, I recommend that the parties exchange briefs.  I prefer short briefs of no more than 10 pages.  

Briefs are due in my office no later than 48 hours before the start of the mediation.   My email address is  This e-mail address is being protected from spam bots, you need JavaScript enabled to view it . My fax is 619-741-9653.  I prefer email.    

If you need to mail documents to my office, please call me at 619-741-9652 or email me to get my office address.  Please do not send documents to my law firm or to the American Arbitration Association. 

I also recommend that each side communicate their opening settlement position prior to the mediation.  What is plantiff's demand?  What is the defendant's position on settlement?  Let the other party know your opening settlement position before the mediation.   You will save time, avoid misunderstandings and increase the likelihood of settlement if this information is communicated before the mediation. 

The mediation:

Who should attend?  Disputes are more likely to be resolved if the decision makers attend.  By decision makers, I mean  the parties and each individual who will be consulted by the parties to make a decision, e.g., spouses, partners, significant others, insurance adjustors and the like. 

If a decision maker is not able to attend the mediation, please notify me and opposing counsel prior to the mediation. 

In addition, each decision maker should be available to work the entire day.  If a decision maker will not be available the entire day, please notify me and opposing counsel.  

Prior to the joint session, I find it helpful to meet privately with each party and their counsel.  The purpose of these meetings is to give parties an opportunity to ask questions and to say what is on their mind.  I listen and answer questions.  

The joint session which follows is typically more constructive if I have met privately with each party prior to that meeting.   

Sign in sheet:  Each attendee is required to sign in acknowleging:  Attendance at the mediation is voluntary; the mediator is a neutral; the mediator is not an advocate for any party; the mediator does not represent any party; nothing the mediator may say shall be considered legal advice; written conflicts and ehtics disclosures were furnished to counsel and the parties; discussions at the mediation are confidential; nothing the mediator, counsel or parties say may be used in arbitration or litigation.     

The joint session:  The joint session is informal and relaxed.   The joint session is not a trial.  Parties have an opportunity to be heard and to vent.   Mediation should open lines of communication.   Effective negotiators not only talk but are good liseners.  

Plaintiff typically starts.  Talk about the facts, the claims, the damages and whatever else you and/or your client want to say.  Use demonstative evidence if you feel it will help your case.  But I encourage the parties to speak.  Every person who attends may speak and tell their story.           

After the opposing counsel and his/her client(s) have had an opportunity to present their case, defense counsel and his/her client have the opportunity to present their position.

After each side has presented their case, I may allow for each side to comment on the other party's presentation. 

Joint sessions typically last approxmimately one hour.   Thus, each presentation should take no more than approximately 30 minutes.  My job at the joint session is to listen, ask questions and to ensure that every person present has had an opportunity to speak.

Separate caucuses.  Following the joint session, I meet privately with each party and their counsel.  We evaluate the strengths and shortcomings of the case, discuss ranges of outcomes at trial, talk about costs and explore settement options.  

Most disputes are about money!  But do not overlook the fact that disputes can be about other issues as well.  Be creative!  Think outside the box!  At a mediation, the parties may structure a resolution that they may not acheive in court. 

(For my opinions regarding negotiation, please visit the Articles section of this web site and read the "Negotiaion Guidelines" section of the article "Getting to Yes and Getting the Best Result".)

We will continue to caucus until settlement is reached or until such time as we conclude that settlement is not possible at the mediation.  

Practice tip:  Be patient.  The more time that is invested, the more likely it is that the parties will come together with a resolution to the dispute. 

Settlement is seldom easy.   Do not give up.  On many occasions, parties and counsel state that settlement is not possible.  I show empathy to these comments but insist that we keep working.  What happens?  Most cases settle.  In fact, 75 to 90% of cases that are mediated settle.  In my personal experience, 90% of cases that are mediated settle the day of the mediation or shortly thereafter. 

Recommendation:  If we reach settlement, put the agreement in writing.  Get all parties and counsel to sign the document that day.

After the mediation   If the case does not settle, do not give up.  I will most likely follow up with phone calls or email to counsel.