Basic Training 2: Gaining Mediation Insight

In late 2014, shareholder A. Michelle Jernigan took part in a boot camp for paralegals. She offered fundamental advice about hiring a mediator and assisting when a mediation takes place. More questions? Call on Michelle at mjernigan@uww-adr.com or (407) 661-1123 or case manager Cathy McCleary (cmccleary@uww-adr.com).



Scheduling a mediation can be a real challenge, particularly if the case involves numerous attorneys. It is important to place a hold on the mediator’s calendar as soon as possible so that you will preserve the date. When you are ready to schedule the mediation, please consider the date and time of the mediation, the location, the fees and charges, the name of the mediator you are requesting, the location and the amount of time you think you will need for the mediation.

Talking with the Mediator before, during or after the Mediation

Good mediators will often contact attorneys prior to the mediation to find out about the parties and the nature of the dispute. If you are engaged in a substantive conversation with a mediator, confirm with him or her that your conversations are considered part of the mediation process and are therefore confidential. I have gained quite a bit of insight into a party’s perspective and the nature of the dispute simply by talking with a paralegal. I always assure them that the conversation is confidential as part of the mediation process. If a case does not resolve at mediation, I will often follow up by phone with the attorneys to see if there is a way to break the impasse.

Attend a Mediation

The best insight you will ever have into the mediation process is through participation in mediation. If at all possible, attend a mediation in which you are involved as a paralegal.

Preparing the Mediation Summary

Most court-ordered mediations will require the attorneys to submit a mediation summary to the mediator. This should be done 10 days – but certainly no less than three days – in advance of the mediation. The mediator should have sufficient time to review and digest the summary. Some suggestions for preparing the mediation summary are as follows:

1. A brief recitation of the facts that gave rise to the litigation;
2. The present posture of the case (any matters pending in court or in any related litigation);
3. Any recent developments that may impact on the resolution of the case;
4. The history of any efforts to settle the case including any prior offers or demands;
5. A summary of the parties’ legal positions and a candid assessment of their respective strengths and weaknesses;
6. Identification of parties, representatives and counsel who will be directly involved in the mediation discussions; and a confirmation of their authority to settle the case;
7. A description of any sensitive issues that may influence any settlement negotiations;
8. The nature and extent of any prior or future relationship between the parties that may affect the mediation;
9. The negotiating strategy of the parties and counsel;
10. Any suggested approach you would like the mediator to use in an attempt to settle the case; and
11. Any creative solutions.

Next installment: Preparing all parties to mediation