General Approach:

Mediation is an assisted negotiation, differing from the traditional Settlement Conference
model in important respects.

The traditional Settlement Conference generally relies on the authority of the judge and
the judge's ostensible ability to predict what a jury will do with the case and to assess what
the case is worth.  The conference is usually conducted entirely in chambers, with the
judge dealing solely with counsel, with the occasional presence of the insurance adjuster.  
Otherwise, the client waits in the courtroom or hallway.  Judges frequently say that "If both
sides come away unhappy, that's the mark of a good settlement."

In mediation the parties are not only welcome to be present, but their active participation
is sought. The clients are the decision-makers; the purpose of mediation not to persuade,
to convert the mediator into the tie-breaking vote, but to make clear the respective
positions of the parties so that an informed decision can be made.

My function as a mediator is to create and maintain an environment in which it is safe for
the parties to temporarily step outside their roles as adversaries, and for their lawyers to
act  less as advocates and more as counsellors, to focus on their common problem (i.e.,
that if agreement is not reached, control of the outcome is surrendered to strangers), and
arrive at a solution agreed to by all.  While mediations are not immune to the mutual
dissatisfaction that is typical of the Settlement Conference, it is not uncommon that all
parties are pleased with the outcome of a mediated settlement.  Further, the participation
of the parties leads to a greater appreciation of the efforts of their counsel, and the
agreements reached are more likely to be carried out.

My first task as a mediator is to figure out what this particular case needs in order to be
resolved.  Many cases are not in need of more evaluation.  Cases that arrive in mediation
with sufficient discovery having be done, and the parties represented by competent
counsel,  are not in need of yet another attorney giving an evaluation based on review of
far less information than is already in the possession of the parties and their counsel.    

But, in cases where there is a need for a strong evaluative approach,  I do not hesitate to
put the lessons of my 28 years civil practice (with more than two dozen jury trials) to use.

"It's all about the money."   Disputes usually seek money, end with an agreement about
money, but nevertheless, are rarely just about money.  Often there are non-monetary
factors that brought about the suit, and non-monetary factors that are obstacles to
resolution.  My task is to identify those and help the parties work past them.

"It's the principle of the thing."  Usually part of my task is to help the parties look forward
at what might happen if they do not agree, rather than backward to evaluate the worth of
what happened.  If the case is not resolved, control of the outcome is surrendered to
strangers of indifferent qualification.  I try to help the parties come to a clear
understanding of whether trial is a better alternative to a negotiated settlement.

Confidentiality:  Facts told me in confidence will not be disclosed to the other side without  
consent.  For example, investigation may have yielded damaging information about the
other side that their counsel does not know, that disclosure would enable the other side to
better cope with if counsel became aware of it before trial.  If l think disclosure  would lead
to settlement, I will do my best to get consent for disclosure, but I do not disclose without
consent.

Similarly, as to money, I encourage parties and counsel to be candid with me as to what
range of value they consider reasonable.  I encourage flexibility and recommend that
parties think in terms of ranges of settlement rather than drawing bright bottom lines which
can later hinder reaching a reasonable accord.  Irrespective of what I know about the
extent to which a party would be willing to compromise, no proposal will be made to the
other side without consent.

Because nothing in the mediation can be used in court, and because confidences are
respected, the participants can be comfortable in being candid with me because their
tactics are preserved and the outer limits of their settlement  posture cannot be used
against them in any further negotiations.

Procedures:

Commencing Mediation:  If counsel believes a case is ripe for mediation, but other
counsel is reluctant,  I am available to contact opposing counsel in order to explain my
services, to learn the reasons for the reluctance, and, if appropriate, explain the benefits
of mediating.

Pre-Mediation:  

  • Pre-Mediation Conferences:  Attorneys, conditioned by ethical rules against ex
    parte contact with the court, are sometimes reluctant to speak directly with the
    mediator on matters other than availability and scheduling.  The reasons for that
    rule do not exist in mediation.  The mediator has no power, cannot make orders
    that harm the other parties, and confidentiality prevents disclosure of what is said.  
    While most cases do not need it, it is sometimes useful for counsel--sometimes all
    counsel in a conference call--or individual counsel to discuss particular or sensitive
    issues in advance so that they can be approached appropriately at the mediation.

  • Information Sheet:  I usually provide an Information Sheet, to be filled out with
    copies served on all counsel, which, among other things, asks each party to identify
    who will be attending the mediation.  One reason for this is to determine whether
    the facilities are adequate.  Another is to help determine whether everyone
    essential to settlement will be present.

  • Location:  If one or more parties is represented by local counsel, the mediation will
    normally take place at the offices of local counsel, and in personal injury cases
    preferably the office of plaintiff's counsel.   If counsel are from out of town, my
    former firm has kindly offered the use of its conference rooms to me, subject to
    availability.  I am willing to travel.
The                              
  • Briefs:  For most simple personal injury actions, I prefer not to receive briefs or
    copies of depositions or medical records, but prefer to hear each party state his or
    her position in joint session at the commencement of the mediation.  The purpose
    of these presentations is to make one's position clear to other parties.  Even if
    briefs are not used, please be sure that all relevant documents, deposition
    excerpts, etc., are available at the mediation.

    But, there are cases where providing the mediator with information--as contrasted
    with advocacy--is helpful, and avoids waste of time in the conference.  In cases
    where the facts are quite complicated, a written summary of the dispute may be
    useful.  Cases arising out of contract (including insurance contracts), are helped by
    providing the relevant documents.    And cases turning heavily on questions of law
    may benefit from briefing.

    Where briefs are used, please make them brief.  Whatever briefs or documents are
    submitted should be received, they should be received at least five days before the
    mediation.  Copies should also be provided to other counsel.  Copies of documents
    already in the possession of all counsel should be identified, but need not be sent
    other counsel; any factual summaries or legal briefs should be exchanged.   
    However, if there are matters counsel wants to submit confidentially to the mediator,
    an addendum can be submitted to the mediator only.

  • Manner of Transmission of Documents and Briefs:  Where possible, I prefer to
    receive documents and briefs as attachments to email in either .PDF or
    Wordperfect format.    

  • Your Pre-Mediation Preparation:  Being well-prepared is no less important for a
    mediation than for a court hearing.  In fact, the informal nature of mediation makes
    preparation especially important.

    Equally  important is to approach the mediation with an open mind--open to the
    possibility that a good reason to revise one's assessment of the case may emerge.  
    While I don't discourage thinking in very general terms about the desired outcome, I
    urge parties not decide in advance a precise  bottom line beyond which not a
    penny less will be accepted, or a penny more paid, but to think more in terms of
    what would be a reasonable range of settlement.   Drawing a line in the sand in
    advance can make it difficult to accept a reasonable resolution which the party may
    well have accepted absent the prior internal position against it, and saying so out
    loud in the mediation vastly more so.      

The Mediation Hearing:

  • All Persons Necessary:  Please be sure that every person necessary consent to
    settlement is present for the mediation.  It is impossible to conduct a meaningful
    mediation and achieve settlement in the absence of all decision-makers.  Where
    out-of-state corporations or carriers are involved, the responsible corporate agent
    with full authority to settle need not be personally present, provided that the
    corporate agent is readily available by telephone at all times during the mediation,
    irrespective of time zone

  • Necessary Time:  Please ensure that everyone is on time, so that the mediation can
    start at the time scheduled.  Please be sure that all persons attending have cleared
    their calendars for the entire time reserved for the mediation; if the parties have
    underestimated the time needed to resolve the case, the time pressure is the same
    for all the parties.  But is one person has somewhere else to be before the
    scheduled time, that person  may be under pressure detrimental to that person's
    interests.

  • Joint Session:  Typically the mediation commences with a joint conference with all
    persons present together in the same room.  After any needed personal
    introductions and the signing of the Confidentiality Agreement, I make an opening
    statement in which I give a basic outline of how we will proceed, the purposes of
    mediation, and confidentiality.

    Thereafter, each side will present its position in the case.   Normally, the plaintiff's
    side will go first.   If liability is disputed, an outline of the facts may be presented by
    counsel, or the events narrated by the plaintiff.  In personal injury cases, the
    plaintiff will be asked to describe their injuries, recuperation, and present condition.  
    In other cases, an outline of damages may come either from counsel or client.

    Other parties  will then proceed is similar fashion.  Contribution from the parties is
    encouraged.  This is also an opportunity for the parties, unless counsel have a
    good objection, to make good-faith inquiries of other parties; it is not intended to
    provide for cross-examination.    It is intended to facilitate the exchange of
    information so that the each side can be better informed in their evaluation of the
    case.

    Also, I may question both sides as to matters on which there is agreement, and as
    to the supporting facts on each side of disputed issues.

    However, mediation is not a "one size fits all" process.  There are some cases
    where a joint session at the outset does not benefit, and yet others in which it would
    be detrimental.  If it is the case that some of the people involved should not be in
    the same room, it is important that counsel alert the mediator prior the mediation.  

  • Separate Sessions:  After it appears that the joint session has accomplished what it
    could, the parties are put in separate rooms.  I normally meet first with the plaintiff
    and counsel, and then with other parties and their counsel.  

  • "What do you think the case is worth?"  That question, seeking a specific number,
    is frequently asked me, but I do not answer because I do not know the answer, nor
    is there anyone on the planet who does.  If a case is tried,  the jury verdict does not
    establish the value of the case;  it simply shows what  9 of 12 lay people thought
    the case was worth.  Different juries would have widely different opinions of the
    same case.  BUT, if plaintiff's demand is unreasonably high, I don't hesitate to say
    so.  Nor  am I shy about telling a defendant where an offer is unreasonably low or
    insulting.  Twenty-eight years of substantial civil trial practice has given me insight
    into the reasonable range of value for a wide variety of cases, and I am quite willing
    to discuss reasonable ranges when appropriate.   Such discussions are typically
    conducted in terms of a party's own evaluations of the case, and not as  
    pronouncements from on high.

  • Settlement Memorandum:   I can provide a memorandum  form to be filled in with
    the major terms of the settlement: the amount to be paid, time of payment, whether
    the settlement is confidential, who bears what costs, and any unusual terms or acts
    to be performed.  It is not, however, intended to substitute for any settlement
    agreement or release to be prepared by the parties.

  • Follow up: If the time expires without an agreement having been reached, the
    alternatives are to schedule a further face-to-face session, or to continue
    negotiations by telephone.  I will continue to mediate as long as there is any
    reasonable prospect that the case can be resolved.
Thomas C. Matychowiak,
Mediator
Further Information: General Approach and Procedures