Mediations may be conducted via video conference. Schedule via the normal process detailed below.Scheduling
Mediations may be scheduled either with my assistant, Sallye Thornton, or me, by phone or email. Often Sallye is easier to reach (direct dial: +1.404.881.5430 or email: firstname.lastname@example.org), but I follow emails closely during work hours. My availability is limited to two mediations per week on Tuesday, Wednesday, or Thursday.
On rare occasions, I am willing to travel outside of San Diego for a mediation. There is an additional fixed charge for time and travel expenses. Typically, I will travel to an out-of-town venue the evening before the mediation and am willing to start the mediation the next day as early as the parties agree is appropriate. In most instances, I will schedule a return flight for around 7:00 P.M. on the evening of the mediation. If any party needs a different arrangement that must be agreed to in advance. I have found that most mediations tend to fill all the time allotted (irrespective of whether it is a few hours or several days) and thus setting a hard stop typically enhances the probability of reaching a settlement. But, again, I will adjust that schedule in instances where necessary and requested in advance.Mediation Agreement
Attached are my standard Mediation Agreement and Fee Schedule (including fixed travel expenses). The Agreement needs to be signed by counsel attending the mediation and returned to Sallye. At the mediation, I will have a copy that can be signed by clients or other attendees from each side. Everyone who attends the mediation is required to sign the Agreement, which includes a mediation confidentiality provision. If there are any terms of the Agreement that either side desires to modify, then the parties need first to agree on any such changes and send them to me (or Sallye) for my review and approval.Pre-Mediation Communications
I encourage the parties as soon as possible after a date is confirmed to discuss with each other, among other things, the following: (1) any additional data or other information (particularly data that is necessary to determine damages exposure) that will be needed to reach a settlement; (2) whether they intend to make an opening statement; and (3) any unique barriers to settlement. If the parties want to have joint or separate pre-mediation conferences with me, they can be set up through Sallye or get in touch directly with me.
By no later than 3 business days before the mediation (but earlier is better), both parties are to provide Sallye (with a copy to me) their respective position statements. This can be done by email (preferable means) or by hard copy. The mediation position statement normally should not exceed 20 pages in length. If there are critical exhibits that I will need to review, the relevant parts should be included with the position statements. However, entire depositions or long data analyses are generally not helpful and should not be included with the mediation statements. Please also include any certification or dispositive court orders. In addition, a list of items is attached that I would like for you to address in your position statement.
I believe that the mediation process works most efficiently and effectively when the parties share with each other their position statements. If there are confidential matters that counsel do not want to share with opposing counsel, then that information should be provided to me separately. While I strongly encourage the parties to share their non-confidential statements, the ultimate decision on that issue, of course, lies with each party.
There is one other attachment that I encourage you to review before the mediation which is an article I wrote that discusses various heuristics/instinctive behaviors that often impact the negotiation process and particularly case evaluations by each side. If you are not familiar with these concepts already, you may find the article to be of interest.The Mediation
In my experience, opening statements are of limited value (and indeed are on occasion counter-productive) if the parties simply are attempting to persuade each other that their respective positions are correct—i.e. that the other party will lose the case. They can, however, be positive when used to explain in a low-key fashion an important issue such as how damage exposure has been calculated, the assumptions made in the regression analysis used by an expert, or other issues that are not covered by the Mediation Statement (assuming it was shared with the opposing counsel). If you plan to make an opening statement, then I ask that you let me and the opposing counsel know in advance of the mediation and how long you expect it will take.
It is my preference that you bring with you a draft term sheet (i.e. MOU) that covers standard settlement terms for a case of the type being mediated, e.g. release provisions, limits on communications with third parties or the media, fees, etc. In the relatively rare case where a party requires the full agreement to be executed at the mediation, then I ask that a draft of that document be shared with opposing counsel before the mediation to try to get an agreement on the basic non-controversial terms before we meet.