Mediation In The Ninth Circuit


E. Preparing for mediation

The most effective and efficient mediations are those in which counsel and their clients are fully prepared. Full preparation means understanding the case on a number of different levels. First, counsel will want to make sure they know the standard of review on appeal, understand the relevant law and facts, and have a good sense of both how the appeal fits into their client’s litigation strategy and how the litigation itself serves the client’s larger goals.

In addition, the following questions may be helpful to counsel and their clients in preparing for mediation:

  1. Mediation works best when all participants know what really matters to them. What are the key needs and interests of yours that, if satisfied, would allow you to resolve this matter? Key needs or interests could be, for example, certainty, closure, economic security, avoidance of legal precedent, avoidance of future litigation, fairness, respect, understanding or institutional change.

  2. What are the key interests of the other parties to the dispute?

  3. Assuming anything is possible, what would you like to talk about at the mediation? What do you think the other parties would want to discuss?

  4. What choices do you remember making in the events that gave rise to the dispute? How might your actions have been misunderstood by the other parties to the dispute?

  5. What could you find out at mediation that might help you understand the actions and choices of the other parties in this matter?

  6. What is the emotional tenor of this dispute? How might you best deal with your own emotions? How might the mediator help the parties handle their emotions?

  7. Consider what will happen if you win the appeal. Consider what will happen if you lose the appeal. Will the appeal end the litigation? Might you or another party file bankruptcy? How much will it cost to pursue the appeal and subsequent proceedings, if any?

  8. What practical concerns inform your thoughts about how to resolve this matter? Practical concerns might include tax consequences, precedential implications, satisfaction of lienholders, cash flow issues or attorney compensation.

  9. What other concerns might be relevant to your thinking about how to resolve this case? For example, are there issues of principle for you or the other parties to the dispute?

  10. What would it feel like to have the case proceed without a negotiated resolution? And end favorably to you? Unfavorably?

  11. Will ending the litigation resolve the entire dispute? Might you have further contact with other parties to this matter? Do you have common business interests or personal associations?

  12. Can you imagine a resolution that would meet the needs and interests of all parties to the dispute? What would it feel like to have the dispute settled in a manner that was satisfactory to all parties? Are there other people to whom you’d want to be able to explain your decision to settle this matter?