Before the Mediation

Participants. Markus Mediation (MM) panelists firmly believe that disputes have a far greater chance of resolution through mediation when the ultimate decision-makers and their advisors attend in person. Therefore, unless alternative arrangements have been discussed, everyone whose decision is necessary for settlement should personally attend the entire mediation. This may include a plaintiff's family member, lien claimant's representative, insurance professional or an insured being defended under a reservation of rights. If you do not intend to be accompanied by the ultimate decision-makers, please notify other counsel in writing, so their clients and they can decide whether to proceed with or cancel the mediation.

Briefs. Please see Mediation Brief Guidelines below.

During the Mediation

Joint Session. Generally, the mediator will start with a joint session attended by all parties and counsel. Please be prepared to summarize your position using whatever means are most effective including, but not limited to, oral explanation, documentation and visual aids. Clarify your client's position for the benefit of the decision-makers in attendance, rather than "prove your case." Normally, initial presentations will last between ten to thirty minutes per counsel and may include participation by the parties.

Separate caucuses. Following the joint session, the mediator will meet separately and privately with each party and his or her counsel. In these confidential caucuses, the participants are free to discuss information which may help get the case settled, but which has not been disclosed in direct negotiations. They may also discuss with impunity information which should not be revealed to other participants. The mediator will help each party and his or her counsel explore the strengths and weaknesses of the case, the ranges of outcome, the costs of prosecution or defense and any non-economic interests. The caucuses provide an excellent opportunity for realistic evaluation of settlement options without compromising any party's negotiating posture.

Reconvening. Ordinarily, caucusing continues until parties reach an acceptable settlement. At that time, the mediator will reconvene a joint session and summarize the terms of the negotiated agreement. Thereafter, counsel may decide to draft and have the clients execute a stipulation containing the key terms of the agreement.

After the Mediation

If the case is not settled at the mediation, the mediator may conduct follow-up activities. Alternatives include caucusing by telephone or in writing and/or scheduling a second mediation session.

Mediation Brief Guidelines

Why?

Who?

What?

Included?

• Identification of mediation participants:
  • Counsel
  • Parties
  • Insurance professionals
  • Lien claimants
  • Consultants and/or experts
  • Structured settlement personnel
  • Anyone else likely to attend
• Procedural history
  • Summary of discovery conducted and planned
  • Summary of motions heard, pending or planned
  • Trial date
• Cast of characters (dramatis personae)
• Facts (page and line references to deposition transcripts are unnecessary)
• Diagrams
  • Chain of commerce flow chart in multi-party cases (tort, real property, construction)
  • Organization chart in employment cases
• Theories of liability / defenses
• Affirmative defenses / responses
• Comparative fault
• Liability of co-defendants
• Attachments (exhibits)
  • Primary contracts and correspondence
  • Key medical records
• Causation
• Damages
  • Economic damages
  • Non-economic damages
  • Punitive damages
  • Attorneys fees
• Mitigation of damages
• Collection (e.g., solvency and insurance coverage)
• Negotiation history (most recent demands and offers)
• Non-economic interests

Excluded?

When?

Exchanged?

Where?