ADR CORNER
Effective Mediation Summaries
WILLIAM J. CEA, ESQ.
We have all been to mediations where
hours are spent identifying issues, back
and forth with factual inquiries, and
assisting the mediator to determine terms
that need to be negotiated. This may just
be part of the mediation process. However,
an effective mediation summary can help
make the process more efficient. Supplying
the pleadings and a description of the
case status is helpful, however, I would
suggest giving some thought to providing
background and insights that will make the
process as efficient as possible.
The following are some tips for preparation
of an effective mediation summary. First,
provide the operative pleadings and a copy
of any pending dispositive motions. Next,
if there have been any rulings that impact
the scope of trial or available remedies
you should expound on that. Beyond the
pleadings, pending motions and rulings,
provide an explanation of what discovery
has occurred and what is left to be done.
Importantly, this is an opportunity to
explain what facts or points have been
established in discovery vs. facts and
matters that are left to be discovered.
The facts yet to be discovered oftentimes
manifest as an impediment to settlement.
For example, in a construction case
even if the parties agree that a defective
condition(s) exists, does the defense know
how much it will cost to repair? If the cost
of repair is something left to be determined
or discovered, that should be explained in
the summary.
Additionally, how much has been incurred
in costs and fees and how much is yet to be
incurred? Is there a basis for the recovery
of attorney’s fees? Have the parties
served Offers of Judgment/Proposals
for Settlement? The mediator needs to
understand the substance of the case,
but it is also important to understand the
economics which also drive motivations.
We all know that the cost of litigation is
usually a practical reality for the parties,
and the mediator needs to understand how
economics play into the dispute.
Further, are there matters of concern or
practical terms that may not be subject
of the claims or available relief, but could
serve as incentives to settle the case. This
is part of the beauty of mediation. The
parties are not bound by the four corners
of the pleadings and relief that may be
awarded by a court or arbitrator. By way
of another example in a construction
scenario, maybe a contractor disputes the
extent of damages. Would the contractor
be willing to provide or extend a warranty
to help compensate the property owner?
Clearly, there are terms that you can seek
in mediation that are not available as legal
or even equitable remedies that may bridge
the gap of the typical monetary negotiation.
Brainstorming the what ifs and laying
some of that our in a mediation summary
will help you prepare for mediation and aid
the process.
Thus, the bottom line is that mediation is
a process and will usually require some
time before the parties can “get down to
business”. However, you can facilitate a
more efficient process and reduce some
of the frustration that participants have
with the amount of time and sitting in
caucus sessions by providing an effective
mediation summary.
William J. Cea, Esq. is a Shareholder with
Becker & Poliakoff, P.A., and is based in
the firm’s West Palm Beach Office. Mr. Cea
is a Board Certified Construction Attorney
and Certified Circuit Court Mediator. Mr.
Cea concentrates his practice in the areas
of construction defects litigation, public
procurement and mediation. Mr. Cea has
lectured for several organizations, on
topics such as mediation and construction
law, including The Florida Bar, the Florida
Association of Public Procurement Officials,
Inc., the Construction Owners Association
of America, Nova Law School, and the Palm
Beach County Bar Association. He may be
reached at (561) 820-2888, or via email @
[email protected].
For additional ADR tips and resources, go to
http://www.palmbeachbar.org/adr-2
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