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Checklist of ADR Strategies & Tactics
Check-List of ADR Process Techniques and Strategies

Mediators are trained experienced to support a productive discussion exploring alternative dispute resolution techniques or processes that best match to the special conditions of the case.  The term “Process Leader” or “Dispute Resolution Advisor” has been used to emphasize the advisory or consulting role of the mediator in recommending or selecting the appropriate ADR process for each matter.  As I’ve explained elsewhere, my PreMediation Best Practice starts with a Pre-Hearing Conferences with each party.  It’s at this time that I encourage counsel to review a comprehensive Check-List of important issues and strategies that should be considered as part of the design of the Mediation Process.  This Check-List exposes counsel and the principals to the broad range of ADR options and useful ways to customize the process to best suit the nature of the dispute.

Introduction to Parties and Mediator.

  • The Pre-Hearing Conference is likely to be the first time the client has met with the Mediator, and may also be the first meeting with one of the Attorneys.This is the opportunity to discuss the status of the Case and how to prepare for a successful Mediation Hearing. When the parties meet again in the formal Hearing, they will have the benefit of that Pre-Hearing encounter to build on during negotiations. 

  • Mediator Resume and Subject Matter Qualifications. It is uncommon for clients to be familiar with the Mediation process, or the role of the Mediator. Since most of what clients understand about the process comes from their counsel, there is an opportunity to present the subject matter qualifications and experience of the Mediator as one of the initial steps in developing the relationship of confidence and trust in the Mediator that will be important during the negotiation phase of the Hearing.

Discussion on Process and Structure of Mediation

  • Preferences on Mediator Style and approach to Mediation.During the Pre-Hearing discussion I explain the “problem solving approach” as a fundamental objective of facilitative Mediation, and how it can be used in this case.

  • There’s a widely held view in negotiation theory that the negotiation “stage” must be set prior to the formal meeting. This “3-D view” popularized by the Harvard Program on Negotiations, requires that: (1) the correct parties be identified and prepared; (2)  that any necessary conditions be addressed or satisfied; and (3) only then can the appropriate tactics for the formal meeting be designed. Unfortunately, in litigation based Mediation, the Pre-Hearing preparations so well understood in negotiation theory are routinely ignored. In my approach to Mediation, as explained more fully in the White Paper "PreMediation", the timing of the Pre-Hearing Conference, well in advance of the formal Hearing, permits the mediator to deal with these background factors, and make sure there is an optimized framework for the negotiations in mediation.  The source for this approach is based on the book 3-D Negotiation: Powerful Tools to Change the Game in Your Most Important Deals, James A. Lax and James Sebenius. Harvard Program on Negotiation, 2006.

  • The Mediation Process may incorporate issues that are outside the boundary of the current lawsuit or dispute.Resolving the “other issues” improves the opportunity for settlement and can be cost effective. But including these issues outside the boundaries take time, and perhaps cooperation of non-parties to fully develop.If initially raised at the Pre-Hearing Conference, it may be possible to resolve “other issues”, and incorporate them into a global resolution. See the “Case Study – Other Issues Key to Settlement.”

  • A discussion on flexibility of ADR Options or Hybrid approaches to Mediation including Med-Arb, Neutral Fact Finding, Early Expert Evaluation, Special Master, etc. is important at the very beginning. Adopting a Hybrid Mediation Process may be the first step in re-framing communications to change the attitudes of the parties from adversarial to cooperative in problem solving. 

  • A discussion on use of Joint/Plenary and Caucus Sessions in Mediation Hearing should also be addressed as an early decision point.  Many lawyers have become accustomed to work with separate rooms for each party for the duration of the Hearing, a caucus only mediation.   But in business and commercial cases, I’ve learned that face to face contact and personal interaction may be key factors in negotiating to a settlement.  At the Pre-Hearing Conference, I can explain the differences and the objectives of each type of session and leave open the opportunity for a joint session as part of the mediation Hearing.

  • It is always important to discuss the best way to involve clients in the Process. Consider the personality or social skills of the client and the opportunity to involve the client in fashioning the outcome. Sometimes it is helpful for your client to hear the best arguments from opposing counsel as a way of “reality testing” or dealing with “overconfidence”.I can manage and control the joint sessions to maintain a cordial, business like setting. Caucus or breakout sessions can be called at any time as necessary to maintain a positive working environment.

  • A discussion on role of Corporate Representative, Managers or Executives with involvement in the present case or with sufficient decision-making authority, as well as project level personnel directly involved in the transaction or dispute. Depending on details developed during the Pre-Hearing Conference, I may explain the benefits of a “two-Step Hearing”, where the first session is designed for information exchange and discussion in a conference room setting among the technical or project staffs for both parties, and the follow-on session is designed for the executives who complete the negotiation and compromise having the benefit of the extensive technical interaction.  See the “Case Study-Two-Stage Hearings.

  • Discuss BATNA (Best Alternative to a Negotiated Agreement) as a way of assessing the strengths and weaknesses of legal positions in the context of risk and uncertainty and the opportunity to achieve a satisfactory financial outcome. Depending on the facts of each case, these risk factors or intangibles may be important in resolving the matter, and establishing a framework up front will permit the parties organize these issues in a logical and rational manner. Since cost is always an important factor in litigation, I ask counsel to present a realistic litigation budget to the client in advance of the Mediation Hearing so the net value of the proposed settlement can be estimated.  Counsel is encouraged to fill in the BATNA worksheet with the client as the negotiations progresses.  The Instructions to the BATNA exercise and the BATNA worksheet form are provided in the link below.

  • Discuss the duration and time estimate for Mediation Hearing. Consider the complexity of the case and a realistic time required for preparation of mediation materials and submittals.  In determining the proper length of time for the Hearing, discuss the options for introductory remarks, opening statements or presentations by counsel, including Power Point presentations and Audio Visual materials as well as formal staff presentations or structured discussions on issues.  Typically, the Mediation Hearing is schedule for a single day;  consider sending a positive message on commitment to settle by scheduling or reserving multiple days for the Hearing if necessary.  But don't be constrained by tradition.  If more time is necessary, consider breaking up the Hearing into stages.  See the discussion on "Two-Step Hearings

Communications with the Mediator

  • There are no restrictions on Ex Parte communications with the Mediator.

  • Where practical, the Mediator will attempt to communicate by e-mail to all parties simultaneously (clients will be included as “cc” only with concurrence of counsel) to foster the idea of transparency and cooperation.

  • As appropriate, attorneys should use joint communications that include all parties (including clients, to the extent practical), again to foster transparency and sending the message of cooperation.

  • Private, confidential submissions to Mediator are permitted, and these communications are not to be disclosed to others without prior approval.

  • Explain Communications between Mediator and Judge.

Communications between Counsel and between Parties –Understanding Negotiating Styles

  • Understanding negotiating styles assist the Mediator in structuring communications and conduct of the Mediation Hearing.

  • How would you characterize the type of communication you have with the “opposing counsel” (passive, friendly/cordial, cooperative, competitive /aggressive)?

  • How would you characterize the type of communication that exists between the “Principals” (passive, friendly/cordial, cooperative, competitive /aggressive)?

Confidentiality of Proceedings & Submissions  –  FOR MEDIATION PURPOSES ONLY

  • Confidentiality of Mediation proceedings, by Court Rule, by terms of Mediation Agreement or by Commercial and Construction Industry Arbitration Rules and Mediation Procedures of the American Arbitration Association. [Please note that the confidentiality provisions of FRCP, FRE, Local Rule 16.3(d) of the United State District Court for the Eastern District of Michigan, MCR 2.411(C)5 of the Michigan Court Rules and MRE408 of the Michigan Rules of Evidence apply to this communication].

  • Confidentiality extends to Pre-Hearing activities, including the Pre-Hearing Conferences, as well as special materials prepared or submitted “For Mediation Purposes Only”.

  • Consider opportunities to exchange documents, information or expected testimony of experts or third parties under the protection of “For Mediation Purposes Only”.  This protocol encourages the parties to exchange information, such as time-lines, power point slide presentations, graphics, summaries or compilations that are useful in presenting your case in mediation, but cannot be used by adverse parties in subsequent proceedings, although the underlying documents or facts may be discoverable.  Narrative Witness Statements or Affidavits submitted “For Mediation Purposes Only” cannot be used in subsequent proceedings, although such witnesses may be deposed during discovery in subsequent proceedings.

  • Inquire if there are any issues relating to Protective Orders or Privilege that must be addressed.

How to Focus and Narrow issues of Dispute

  • The Pre-Hearing Conference often begins with the factual summary and legal issues, claims and defenses. Sometimes the pleadings are provided to the mediator in advance of the Pre-Hearing Conference.

  • Do the parties agree that the legal issues have been narrowed to the important key topics?

  • Are there topics or issues that need to be vetted prior to the Mediation Hearing? Can the Mediator offer suggestions or options to avoid attribution to one of the parties?

  • Is liability an issue? What key facts in dispute or missing? Is there anything that can be done to address problems or deficiencies prior to the Hearing?

Characterize the claim for Damages.  Where are the areas of agreement, or disagreement? 

Expanding the Boundaries of the Mediation.

Are there things “other than money” that can be considered as part of the solution? Although settlement will almost always involve the grudging exchange of money, “other issues” can be important factors that facilitate negotiation or reduce barriers to settlement.  The Pre-Hearing conference is the appropriate time to explore these issues. The following factors are illustrative, but certainly not exhaustive:

  • Explore the importance of continuing business relations, or perhaps the best path to sever ongoing business relations. If the parties have an ongoing business relationship, the Mediation process may be used to successfully resolve the current dispute, and reduce the negative impact on future business relations.  I refer to this inquiry about mutual business interests as “planting the seed”.  During the Pre-Hearing Conference I make the suggestion, but don’t know what will develop, and don’t expect an immediate response.  Sometimes this relationship mending exercise becomes the formal mediation strategy, other times I’m pleasantly surprised at how my suggestions come back during the formal Hearing. 

  • "planted the seed"  during a Pre-Hearing Conference in a case involving product liability claims where each party had international operations and different divisions.  I asked each corporate representative if there were "other issues" that were open or outstanding between the companies that could be resolved as part of a settlement in this case.   Each side said no.  At the Hearing, as negotiations on the product liability claim were in the final stages, one side made a final offer that incorporated the acceptance of a pending “price adjustment” on certain part numbers for an unrelated product line  at a different division.  Without pause, the other side countered with a demand for “no resourcing” for a fixed duration on an entirely different set of parts.  The money issue on the product liability claim was not the only factor in the successful settlement. You just never know what develops when you “plant the seed”.  See the Case Study where two auto suppliers found unresolved pending issues in other divisions, and brought these unrelated issues to the table to resolve an underlying warranty indemnity claim.

  • Explore the importance of negotiating non-competition and non-disclosure disputes as part of the final settlement.Bring this up early, as there may be value to one side, without great cost to the other;

  • Explore the importance of confidentiality, avoidance of adverse publicity, non disparagement, nondisclosure of settlement;

  • Are there issues of financial hardship, the value of immediate receipt of money, or need for extended payment terms?The time value of money should not be overlooked in business disputes; bringing these issues forward for discussion can demonstrate candor and shape negotiations.

  • Understand the importance of limiting the future distraction to ongoing business operations; this is a real cost (and may be a real benefit) to many businesses and may need to be incorporated into the mediation strategy.

  • As Mediator, I can make an early suggestion that parties think about reframing the issue from what was lost to what can be gained or accomplished with the settlement. Combined with limiting the future distraction to ongoing business operations, this can be viewed as tangible value in negotiations. I have sometimes suggested that parties consider “surviving” litigation as a business objective, and not focus on “winning”.

  • Make sure future transaction costs, delays, appeals, multiplicity of actions (litigation fatigue) are discussed. As Mediator, I want counsel to provide their clients with realistic budgets for litigation going forward if mediation is not successful. This ties in with the separate discussion on the BATNA topic.

  • Understand the simplicity or complexity of legal theory or facts, ease or difficulty in presenting witnesses, experts, etc. How will the case be understood (or misunderstood) by a jury are factors that can impact the negotiating position and settlement objectives of parties;

  • Explore whether there is an opportunity to exploit or avoid “special factors” such as adverse publicity or egregious conduct that tend to be “multiplying factors” to trial court judgments;

  • Understand the importance of principle, value of apology, the need to be heard or for a “day in court”, or to be in control of the outcome. As Mediator, I can design the process to accomplish these objectives;

  • Explore the opportunities to settle and dismiss other litigation matters; or to address issues not a part of the present controversy, or that could not be granted by formal legal process such as settlement and release on other potential or future claims.

  • Expanding the Boundaries can also involve the resolution of litigation or disputes that involve parties not directly involved in the present action and could not be consolidated by Court Rule. ThePre-Hearing conference can explore opportunities that would not be considered possible under strict litigation rules.

Use of Experts in Mediation – Jointly Retained, Common Experts for Mediation Purposes Only

  • If I sense the advantage to have an expert involved early in the case, I may suggest that the parties to collectively engage a technical expert “For Mediation Purposes Only”.  This can provide unbiased, objective findings about key issues in dispute. I can work to get the buy-in from all parties, so it won’t be viewed as an advantage to one, and a disadvantage to the other (the unconscious bias known as “reactive devaluation” that often thwarts good intentioned initiatives). I’ll suggest that the parties jointly select the expert, jointly develop and agree on the scope and assumptions, and share the cost. The parties would then have the benefit of unbiased, objective information to support the negotiation process in mediation and hopefully avoid the inevitable confusion and hardening of positions that results when each side retains its own expert to advocate its desired outcome.  Sharing the costs of the neutral experts can be a significant step in establishing a cooperative framework. As the Neutral, I have assisted in identifying and selecting the expert, and “mediating” the scope of the investigation.  

  • Consider the opportunity to manage a session of accountants, engineers or other Experts to explore the impact of methods or assumptions on the final opinion (this is sometimes referred to as Tandem Examination of Experts, or Hot Tubbing, and can be formal, or informal depending on the circumstances). These sessions can be held in advance of the scheduled Mediation Hearing, or undertaken in a joint session at the Hearing.Depending on the complexity of the issue, consider in person or Video conferencing hook ups at the Hearing.

Document Exchange

Depending on the status of discovery, there may already be extensive exchange of documentation, or, if early in the case cycle, very little formal document exchange.  The lack of extensive document exchange should not be a barrier to a successful mediation session, but it is important to make sure that the parties have “sufficient information” to make “reasoned decisions” at the mediation session.  The following suggestions should help in deciding how much, and what type of document exchange is necessary of the given case.

  • Do the parties agree that there has already been sufficient document exchange?

  • Will the use of “For Mediation Purposes Only” make it easier for additional document exchange that can be accomplished prior to the Mediation Hearing?

  • As Mediator, I can establish suggested schedules to complete document exchange and agree if the “For Mediation Purposes Only” protocol will be used.  Often it will be helpful for the Mediator to act as intermediary, or coordinate or confirm the timely exchange of information.

  • Is there some information that a party does not want to share openly for reasons of negotiating or trial strategy? Discuss the merits of full disclosure vs. withholding information in the context of Settlement discussions, e.g. a party may want to release information only if Settlement is possible at Mediation Hearing.

  • Some non-competition non-disclosure and breach of confidentiality claims involve sensitive information that a party does not want to disclose, even with the benefit of Protective Orders.  Consider the opportunity for the Neutral to examine customer lists or other data to disclose conflicts or verify compliance.

  • The Mediation framework can support the need for information in creative, cost effective and timely was.  Consider the examples in the following Case Study where non standard methods have been used to support successful mediated outcomes.

Depositions or Narrative Witness Statements

  • Do the parties require additional testimony from others, in the form of informal conferences, teleconferences, or more formal like Depositions;

  • If used for “Mediation Purposes Only”, would it be worthwhile to conduct video conferences or telephone conferences with key players, experts or witnesses, either before, or at the Mediation Hearing?

  • Identify requirements, establish schedule to complete depositions / video conferences, etc.

  • Submission of all or portions of deposition transcripts for use at the Mediation Hearing. Please highlight the relevant portions of transcript testimony, along with a brief description to place the highlighted testimony in context.

  • Consider Narrative Witness Statements or Affidavits Under Oath for persons that are not able to appear at the Mediation Hearing. It is important to exchange these well in advance of the Hearing in order to avoid surprises and permit the other party to prepare with rebuttal or cross examination type materials.These materials can be submitted “For Mediation Purposes Only”.  I have prepared a Protocol for Narrative Witness Statements for use in Arbitration matters.  The Protocol is also useful in the context of Mediation.

Identification of Necessary Parties

The Mediator imagines an “all party” map of the dispute, including those that are identified, as well as potential parties, that “should be” involved.  In many complex business or construction actions, the “project team” has been involved with the details that are critical to both an understanding of the dispute, as well as the opportunities for resolution.  The Pre-Hearing conference permits the Mediator to suggest a two-stage mediation, where an Agenda is prepared for fact finding and information exchange between the “project teams” for each side, with a follow-on session planned for the “executives” to address negotiation and the final terms of settlement.   The following suggestions are offered as examples that I have used successfully:   

  • Agreement on necessary parties to participate in each stage of the two-stage Mediation Hearing.

  • Agreement on limited role at the Mediation Hearing for non-parties that may contribute useful information.  In my experience, this could be a key employee, supplier, customer, consultant or expert that could tell their story, answer questions and then leave the hearing. Think informal deposition of a potential witness "For Mediation Purposes Only".

  • When Insurance coverage is involved, make sure there is agreement in advance on levels of authority for Insurance Adjusters or corporate representatives that will attend the Hearing; and plans to confer or adjourn the proceedings if levels of authority become problematic .

Expectations for Mediation Hearing

  • The mere fact that a Mediator been added to the litigation process can send a positive message. The greatest motivation of the parties to settle is the perception that the case can settle.The corollary is equally true, a great impediment to settlement is the perception that the case will not settle. Confirm that both parties are committed to a good faith effort to arrive at a settlement at this Mediation Hearing.  Consider options to demonstrate commitment, such as beginning concessions, outlines of settlement proposals, multi-day hearing commitments, and financial commitments such as sharing neutral expert fees or advances or retainers to the Mediator.

  • Confirm that all conditions or items that must be completed or delivered prior to Mediation Hearing have been satisfied.

  • Are each of the negotiating teams in alignment?  Do the attorneys and clients (adjusters) have a common understanding of case valuation?  Do they share a common position on compromise in negotiations, or are there firm or entrenched positions that must be acknowledged?

  • Have the Parties discussed Settlement or exchanged offers prior to the Mediation Hearing?

  • Discuss the importance of a Plan for Negotiation, Opening Demand, Exchange of Offers, etc.

  • Each demand, offer or counter offer should convey a message to the other party. Consider an “Offer with Commentary” as a way to make sure your message is understood.

  • Discuss options for evaluating offers during the negotiation.  Are the parties conversant with the BATNA protocol used to assist in case valuation? I have attached a BATNA exercise that can be used prior to or during the Mediation Hearing to assist counsel and clients in organizing the strengths and weaknesses of the case, as well as introducing the concept of the risk and uncertainty into case valuation.

Submission of Mediation Pre-Hearing Materials or Briefs

  • Pre-Hearing Briefs should be helpful for the Mediator, for the other party, for your own client. Often the Pre-Hearing conference will narrow or focus the issues to be presented at the Mediation Hearing, and the formality of the submission can be adjusted. The parties are always permitted to follow formats that they are comfortable using.

  • Use of Case Evaluation Summaries or Motions. If the parties have filed motions or summaries for other purposes, these documents may be used, and supplemented where appropriate with materials that focus on the mediation objectives.

  • Contents, Limits on Length. There is no limit or restriction on length. If multiple documents are submitted, please provide separate Tabs to facilitate future reference.

  • Sharing Pre-Hearing Briefs, Expert or Consultant Reports, Deposition Transcripts, etc.  The Mediator encourages the parties to exchange Pre-Hearing materials as soon as possible.If preliminary expert or consultant reports are available, counsel are encouraged to provide this preliminary information. Consider the “For Mediation Purposes Only” designation.

  • Narrative Witness Statements, Affidavits Under Oath.Consider using Narrative Witness Statements or Affidavits under oath for key players in the dispute, even if the person will be attending the Mediation Hearing. As always, limited “For Mediation Purposes Only”.

  • Presentations by counsel during the initial Joint Session of the Mediation Hearing are encouraged. Power Point or other Audio/Video presentations should be disclosed in advance to avoid surprises and to permit both sides sufficient opportunity to prepare initial presentations.

  • Private and Confidential Communications. If either party wishes to provide a confidential disclosure to the Mediator, not to be disclosed to other party without consent, consider a separate document labeled for Mediator’s Use Only.

Preparation for Mediation Hearing

  • The Mediator may prepare on Agenda for the Mediation Hearing based on progress made during the Pre-Hearing conferences and an understanding of the issues and challenges that must be addressed during the Hearing.

  • The Mediator will discuss the role and type of participation of counsel and clients for the Mediation Hearing.The Agenda will reflect if opening statements or presentations are to be delivered. The use of joint sessions and private caucuses will also be incorporated into the Agenda.

  • The Mediator will explore whether non-monetary issues are important, such as release of claims, indemnity, schedule of payments, confidentiality, non-disparagement and non-disclosure of settlement terms, etc.

  • Anticipating a successful Mediation Hearing, the Mediator will prepare a binding Settlement Agreement Term Sheet to incorporate the financial terms of settlement, including standard release, non-disclosure, discharge and dismissal of the litigation.

  • Under some circumstances, parties may require a more complex Settlement Agreement, in which case, the Mediator may request that the parties prepare an Ideal Settlement Agreement, and exchange these documents with the Mediator in electronic format prior to the Hearing. If requested the Mediator will then assist in preparing or reviewing the final Settlement.

Results / Outcome of the Mediation Hearing [What to expect]

  • Successful Resolution “at the Table”; Final Settlement Agreement Executed, Stipulation for Dismissal, proposed Orders prepared and signed.

  • Meeting of the Minds, but the some of the details are too complicated to complete at time of the Hearing. Suggest a Term Sheet, or outline of settlement terms, signed by the parties with firm schedules for completion of final documents. This can still be a binding settlement, but additional documentation may be necessary (for example, agreements to indemnify, release, agreements on non-disclosure, etc. may be stated with the expectation that standard language will be drafted at a later time and mutually agreed upon by the attorneys).

  • Is Future Performance by a Party is a Condition to Settlement, such as: completing performance; correcting construction defects; vacating tenancy; agreement not to compete or solicit; deferred payment; future commissions; computation of amounts due or to be received; third party accounting or verification, etc.

  • The following Case Studies show how the Mediator can act as an Escrow Agent for disbursements of funds, and Act as a Standing Neutral to address issues arising out of future performance by one of the parties.


There are many options, along with attendant details to consider when a party's fFture Performance is required to satisfy the conditions necessary to reach Settlement:

  • Establish and Fund an Escrow Account of sufficient amount to cover all or portions of Future Performance obligations. The Mediator, a title company or one of the attorneys can serve as Escrow Agent.

  • Agreement to designate a Standing Neutral to either mediate or arbitrate future disputes interpreting provisions of Settlement Agreement. The Standing Neutral can verify completion, payment, or other performance required by a party, and can issue a binding decision or award.

  • If many issues are resolved during the Mediation Hearing, but some remain, the following options should be considered before accepting impasse and adjourning the Hearing:

  • Mediator/Facilitator can act as Arbitrator for unresolved issues (MED-ARB).If the parties consider this Option desirable, it is important to discuss the disclosures and commitments required of the parties, prior to commencing the Mediation/Facilitation Hearing, as the commitment to Arbitrate unresolved issues can have an impact on strategy during the Mediation phase of the hearing. The Mediator/Facilitator can provide a sample MED-ARB agreement that explains the procedural, ethical and strategic issues involved in this hybrid form of ADR.

  • The MED-ARB option can be flexible and creative, such as framed with HI – LOW limits or as Baseball Arbitration, where the Arbitrator is restricted to accept one of the final offers of submitted by each party.

  • Adjourn and Reconvene the Mediation/Facilitation when necessary parties, or additional information is available (e.g. resolution of motions, audits or accountings, medical examinations, etc.) with firm time schedule and responsibilities. Adjourning the Hearing sends a positive message that settlement is still possible.

  • Consider final resolution of some issues, while unresolved issues may be reserved for Trial, resulting in a Partial Settlement Agreement.

  • Before you adjourn, consider taking a Recess.  Ask the Mediator and the parties if there is anything else that can be accomplished today.  Are you sure your message has been getting across?  Is additional information necessary before Settlement discussions can resume?  Can you use the time together to identify and work through the issues that must be addressed in the future so that Settlement becomes possible?

  • Do you know what the real “Gap” is between the final offers of the parties?  Understanding this “Gap” can be a real benefit and the foundation for reestablishing settlement discussions in the future if the parties have in fact offered their “best numbers”.

  • Think about the impression you want to make on the other side as you leave.  Be mindful. Even packing up and walking out can be thoughtful.  But there are also many other productive ways of concluding a Hearing that has reached Impasse.

  • Use a “Mediator’s Proposal”.  In a typical application, the Mediator proposes a dollar amount to each party as the Hearing adjourns.  Within a stated time period, the parties are instructed to advise the Mediator/Facilitator whether they accept or reject the Mediator’s / Facilitator’s Proposal.  If both parties accept, the Mediator will advise the parties, and final settlement documents will be prepared.  If either party rejects the Mediator’s  Proposal, the Mediator will file a Mediation Status Report with the Court, indicating that the matter was not resolved. The Mediator will not disclose the decisions of either party.

  • Consider the Mediation Hearing a success because you have identified information that is necessary before successful settlement discussion can occur. Consider this a Mediated Discovery Conference.  Reconvene the Mediation/Facilitation Hearing when necessary parties, or additional information is available (e.g. resolution of motions, audits or accountings, medical examinations, etc.) with firm time schedule and responsibilities.

  • Agreement to Arbitrate portions, or the entire dispute, with or without HI-LOW boundaries, or use “baseball arbitration” rules.Use the Mediator as Arbitrator, or select a new Arbitrator.

  • The Mediator will advise the parties that he/she will be contacting each side prior to the scheduled trial date to gauge interest in reestablishing settlement efforts.

  • At any time, at the request of either party, the Mediator will follow up after the Hearing and offer to re-engage settlement discussions.Consider this approach if you have “new” information that should be shared with the other side.

  • You can always contact your opponent on your own. Provide some “new” information as the reason for initiating the contact.

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