1. Gather evidence
Prior to mediation, the material facts of the case must be
investigated and recorded in a form that is admissible
into evidence at trial. Although the necessity for factual
development of the case may sound so fundamental
th at it should go without saying, it is surprising how
often a skilled mediator will raise factual questions
which could materially affect the value of the case
and neither side has gathered evidence to address the
issue. This realization not only reflects poorly on the
diligence of counsel, but it significantly diminishes
the probability that the case will settle at mediation
because prudent decision makers are understandably
unwilling to buy the proverbial “pig in a poke”.
ADR Rule 2.9 expressly provides for the deferral of
discovery pending mediation. In addition, although
ADR Rule 2.11 provides that statements made in
mediation are not admissible, evidence otherwise
discoverable outside of mediation is not excluded
merely because it was discussed or presented in the
course of mediation. ADR Rule 2.11 (B)(1) provides
that mediation is regarded as settlement negotiations
governed by Indiana Evidence Rule 408. However,
it is generally understood that the rules do not
prevent using statements made at the mediation to
lead to the discovery of other admissible evidence.
Any temptation to use mediation as a discovery tool
should be avoided for several reasons. First, there is
no way to confirm the veracity of statements made by
counsel and parties at the mediation, so the information
gained in that forum is of little value in resolving the
claims that day. Second, if the case is not going to
settle, it will be necessary to secure the information in
admissible form at a later date anyway, and those formal
discovery efforts may not be as effective if an opponent
has already been educated through the mediation process.
2. Know the law
Mediation is a supplement to, not a substitute for,
jurisprudence. The same law that the court or jury will
apply at trial should govern decisions at the mediation.
This requires that the well-prepared advocate research
and understand the applicable law in advance and be
prepared to persuade the adversary and the mediator
of the effect it will have on the outcome of the case.
Although most mediation facilities will have a law
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library and internet access available for research, this is
not the opportune time to perform a considered analysis
of legal issues. Not only may tardy and hasty research
delay progress of the mediation and reflect adversely
on the credibility of an attorney’s opinion, there is
insufficient time to effectively communicate the impact
of such research to the ultimate decision makers.
3. Evaluate the Case
An accurate evaluation of the case by experienced
trial counsel is essential to prepare for a successful
mediation. This evaluation should contain an objective
summary of operative facts and an evaluation of
applicable law along with the probability of prevailing
at trial, the verdict range if the case is tried and lost and
the cost of trying the case to verdict and final judgment.
All costs and expenses should be considered including
trial testimony and videotaped depositions of treating
physicians and liability experts. Witness fees, travel
and lodging, exhibits and transcripts cost should also
be considered. To properly evaluate their case, personal
injury plaintiffs may need information and education
on the time value of money and the tax consequences
of a structured settlement. All of this information
must be effectively communicated to the client with
sufficient time to consider options, obtain authority
and develop a plan of action before the mediation.
4. Select the Right Mediator
Not all mediators are alike. They come in a broad
range and variety of skills, experience, and abilities.
Choosing the right mediator for your case can make the
difference between promptly and favorably settling the
dispute and simply raising the stakes.
An effective mediator should appear neutral and have
the stature and reputation to command the respect
and confidence of all parties. The mediator should
demonstrate strong leadership skills and maintain
firm control over the proceeding. This aspect of
mediation is an art and not a science. It requires the
ability to facilitate the sensitive balance between an
appropriate emotional release which may be necessary
to allow the parties to feel they are having their “day
in court” and the succinct professional presentation
which is necessary to bring reason to the proceeding.