Prepared for the Performance
By Donald L. Swanson
Advance communications among the mediator, the parties and their attorneys can be helpful in creating an organization, structure and efficiency for multiparty mediation sessions.
The following are items one through five in a ten-item checklist of the types of subjects that should be addressed in the advance communications:
Item One. Settlement Impediments
To help parties divert attention from their most-cherished arguments and toward settlement possibilities, each party should provide the mediator with written answers to the following questions:
(1) Why haven’t the parties settled already?,
(2) What settlement possibilities might reasonably be anticipated?,
(3) What impasses and impediments to settlement currently exist?,
(4) What are the costs and risks of failing to settle now?, and
(5) What settlement terms might be negotiated in a mediation that could not otherwise be obtained?
Item Two. Parties.
Absent parties have torpedoed many a mediated settlement:
(1) Are all necessary parties included in the mediation?
(2) Are insurance or other indemnification rights implicated?
(3) Would a party’s absence from the mediation tend to undermine or create problems for any settlement that might be achieved?
Item Three. Information and Discovery