What you provide to the mediator will depend on the type of mediator you have selected. Typically, a facilitative mediator will prefer that the parties not provide lengthy written materials that deal with the evidentiary issues and factual disputes. Rather, the facilitative mediator will prefer to learn most of the information in the mediation session and relate more to what the parties say and how they react in session.
On the other hand, an evaluative mediator intends to evaluate the strengths and weaknesses of the claims and defenses, in addition to learning a considerable amount of information directly from the parties during the mediation session. This mediator will want considerable information about the factual disputes, the disputes related to admissibility of evidence, and the legal issues. The mediator will want to assess the credibility of witnesses to the extent possible. Counsel should be prepared to provide copies of pleadings including briefs and exhibits, excerpts of deposition testimony or statements of key witnesses, expert reports, and documents supporting or defeating the damages claim. If you are missing key information, the mediation process may present an opportunity to obtain what you need in exchange for giving information that the opposing side wants. The mediator can assist you in reaching such an agreement.
Counsel can be most effective here if he or she is honest with the mediator. It is critical to analyze the case, factually and legally, and to articulate not only the strengths of the case, but the weaknesses as well. It also is helpful to analyze the case from the opponent’s perspective. Do not fear acknowledging problems in your client’s case. It is not a sign of weakness. Rather, if counsel acknowledges the problems, and then establishes how he or she intends to overcome them, this reflects strength and preparedness.
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