 before the mediation begins
example:  you need a key document before you can evaluate the case for    settlement purposes
 or during the mediation
example:  you want to observe the other party during the mediation - this may be your lawyer's first opportunity to decide whether the other party  would be a compelling witness at a trial
Margaret Huff Mediation
PHONE:  615.812.5557

ADR Articles - Business Case Pre-Mediation Checklist
Margaret Huff Mediation   PO Box 121951   Nashville TN 37212-1951
Telephone 615.812.5557  Email Margaret Huff Mediation
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 what are the key needs and interests that, if satisfied, would allow you to  reach an agreement
 how will the other parties see the dispute
 what are their key needs and interests
 do the parties want to have a productive business relationship in the future
 how can you address future business relationships during negotiations
 think about possible settlement agreements that would satisfy key interests and needs of both sides
 what is the range of settlements in this type of dispute
 what if everything went right in a trial of this case - what is your best  alternative to a negotiated agreement
 what if everything went wrong in a trial of this case or what if the other side were to file bankruptcy - what is your worst alternative to a negotiated  agreement
 if the business dispute is in litigation or there is a potential lawsuit,
• what is the realistic likelihood of success at a trial and any appeal
• will you be able to collect on a judgment in your favor
• what are the estimated costs of full litigation -
depositions and expert fees
              legal fees and other costs
 are there issues such as tax consequences for you or other people in the dispute
 will ending the litigation actually end the entire dispute
 consider the risks and rewards of addressing new issues or legal theories at the mediation and whether to share these new agenda items before the mediation session begins
• check for any conflict of interest
• discuss confidentiality, including confidentiality of this initial call
• ask for a copy of the mediator’s proposed Mediation and   Confidentiality Agreement
• briefly describe the dispute and estimated time needed for mediation session(s)
• schedule the mediation session(s)
• depending on the case, reach an agreement that each side’s attorney may have separate, confidential communications with the mediator before the mediation session - usually helpful for you and the mediator, just as caucuses (private meetings with the mediator) can be beneficial during a mediation session
 information shared at the mediation often changes initial case evaluation
 if you don’t reach a complete settlement, be ready to shift gears - you might want to use the mediation as an opportunity to negotiate narrowing the issues, scheduling discovery, or limiting the number of expert depositions
 make sure the parties and the mediator agree on the final draft of the proposed Mediation and Confidentiality Agreement
 obtain confidentiality agreements from any non-parties such as experts giving a presentation at the mediation
 depending on the nature of the case, consider asking the mediator to get the agreement signed before the mediation
• the publicly described dispute is often the tip of the iceberg
• you may want to share certain information (in confidence) with the mediator, such as a strong desire to have the dispute resolved by a certain deadline due to financial constraints
 is the case ready for mediation
 what schedule will most likely streamline the case and reduce litigation costs and other expenses
 share any unique background or other information that would be helpful for mediator to know, in order to facilitate effective communication and  negotiation at the mediation
 give a “heads up” to the mediator on any past miscommunications among the parties, hot button issues, or matters of principle that need special handling
A.  Clients and their attorneys prepare:
1.  Review: 
 it’s elementary, but essential - review the law and the available facts

2.  Information Gaps:  what additional information do you need -
3.  Your Needs and Interests: 
4.  Other side(s) in the dispute: 
5.  Evaluation - estimate a likely settlement range and calculate probable costs of                  full litigation of the case: 
6.  Other issues: 
7.  Select the Mediator
9.  Flexibility:  prepare to be flexible -
8.  Plan the Negotiation:  develop your mediation strategy - 
 what do you want to talk about at the mediation
 what do you expect the other side will want to discuss
 how will you respond to the other side
B.  Further pre-mediation communication with the mediator paves the way to a more effective settlement negotiation:

1.  Mediation and Confidentiality Contract:
2.  Facts, Law, Interests, Needs, and Negotiation History:  depending on the case,            provide a written summary and/or discuss with the mediator:
 important facts
 legal principles
 key interests and needs -
 history of pre-mediation settlement negotiations

3.  Timing:
4.  Who Sits at the Table: 
 who should be at the mediation session(s)
• the disputing parties and their attorneys
• perhaps others such as experts
• parties in related lawsuits if your goal is a global settlement
 should anyone be available by telephone during the mediation
 is there anyone who should not be invited to the mediation
5.  Background: 
As the legal and business community become increasingly familiar with mediation, it’s important to remember that your dispute is unique.  The people involved can dramatically change the playing field.  The facts in your case and any legal uncertainties affect the negotiations.  Think about these factors as you adapt my suggestions on preparing for your mediation.

Copyright Margaret M. Huff 2008-2011.  All rights reserved.

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 suggest an appropriate mediator to the other side
 decide whether you prefer (or oppose) selecting the other side’s recommended mediator
 contact the mediator; in your initial call -
Enhance Your Mediation Effectiveness in a Business Case:  A Mediation Planning Checklist for Advocates and Clients Involved in a Commercial Dispute
by Margaret M. Huff

So you’re involved in a business dispute.  Should you try to negotiate a satisfactory settlement that meets your interests and needs?  Of course!  One option is to retain an experienced mediator to facilitate the settlement negotiations.

If you decide to mediate, will it help to invest some time preparing in advance of the  mediation session?  Definitely.  Thoughtful preparation and honest appraisal of your case will likely improve your effectiveness in the mediation, so you come away more satisfied with the results.   

What should you consider doing before you actually sit down to meet with the mediator and the other side in the dispute?  Read on for key mediation planning tips.