When you want a mediator who will review the factual and legal issues and apply his or her experience to evaluate the claims and defenses, you want to engage an evaluative mediator. The evaluative mediator looks at the strengths and weaknesses of each side’s case, and then seeks to persuade the parties to compromise their positions to avoid the exposure and the risk of losing the case at trial. Evaluative mediators want as much information as is available in order to make the evaluation. They may read deposition excerpts, and lengthy briefs in support or opposition to summary judgment. They will be very familiar with the legal issues and will want you to describe what legal issues will impact your case.
Where the mediation is conducted before the case is filed in court, factual information may be limited. Nevertheless, it is helpful if counsel spends time to conduct informal investigations to the extent possible, and provide the mediator with statements or signed letters from key witnesses. Even though cross-examination has not yet occurred, such documents can be very powerful.
If the case is in court when the mediation is scheduled, you will have considerably more information to provide. Focus on the material factual disputes in the case, and give the mediator the documents or testimony that bears on those issues. Your conclusions in a short letter are not nearly as helpful as the witness testimony or documents. Even if you do not attach them to your pre-mediation submission, bring all documents, depositions, and expert reports to the mediation. It is frustrating to have to tell the mediator that you have an important document, but left it at the office.
Sharing your pre-mediation submission with opposing counsel is an effective way not only to essentially give your opening statement but also to convey your confidence in your case. You can separately give the mediator any confidential information, your private thoughts as to any perceived weaknesses in your case, and your client’s settlement position.
