Judge Terry Lukens (Ret. King County Superior Court and pictured here) is a mediator and arbitrator with JAMS. He provides those with whom he will serve as the mediator with this Mediation Preparation Checklist, which you may find useful along with the checklist provided in Pretrial Advocacy 4th Edition:
Mediation Preparation Checklist
Judge Terry Lukens (Ret.)
□ Analyze the barriers to settlement – why hasn’t this matter settled? Lack of communication? Emotion? Lack of information? Old family grudges? What can be learned from the negotiations, if any, that have already taken place?
□ Consider how the mediation and mediator can help you overcome those barriers to settlement.
□ Make certain that everyone whose decision is necessary for settlement can participate and that someone with sufficient authority to settle is available – the absence of a party or a decision maker can doom the mediation
□ Identify other people who may need to be at the table or available by phone – accountants, actuaries, insurance advisors, or business and tax advisors.
□ Educate your client about:
- The key issues in the case
- What the process is and the roles of attorney, client and mediator
- What to expect
- How to listen and when and how to reply
- Expectations from prior discussions
□ Familiarize yourself with the specific details of your case. The greater your familiarity and ease of presentation, the more expeditious and effective the proceeding. Have the basic documents of your case succinctly arranged so they can be referred to easily to aid your argument and to educate the mediator.
□ Talk with your client to become clear about his/her interests (or “needs”), as distinct from the positions (or “wants”) that have been asserted in the dispute. Which interests are most important to your client and how might they be satisfied?
□ Talk with your client about the interests and concerns of the other parties to the litigation. Which interests are most important to the other parties to the litigation and how might they be satisfied?
□ Discuss reasonable settlement goals with your client.
□ Critically evaluate your own case – do your own realistic risk analysis.
- Ask yourself: How could we lose this case?
- Ask yourself: If we lose, what/how much will we lose?
- Ask yourself: If we win, what/how much will we win?
- Ask yourself: What is the real risk of either winning or losing and what is the most likely outcome?
- Ask yourself: What is our worst document? Witness? Fact?
- Ask yourself: How does the other side see the key issues, facts, and law?
- Ask yourself: What is the other side’s best argument?
- What will the litigation cost (legal and expert fees, costs, client’s time sitting in the courtroom or arbitrator’s office) and the effect on the parties (disruption, emotional cost)?
□ Consider how the other party is likely to evaluate the probable outcome if the case is litigated, asking yourself the same questions outlined above, but from the other side’s perspective.
□ Consider what you could do in your mediation presentation to change the other side’s evaluation of the case.
□ Consider what information that has not already been shared might be helpful. Remember to bring it with you – you can always control whether and how it is used.
□ Think about items that would appeal to your client as part of a settlement package — do not limit yourself to the types of relief sought in the litigation. Think about options that might appeal to the other side. Be creative!
□ Submit a mediation memorandum to your mediator
- Brief, usually under 10 pages
- Focus on factors that affect settlement
- Discuss confidential information vs. that information that is disclosed to opposing counsel
- Attach exhibits if essential to a disputed issue
- Excerpt pertinent portion of relevant documents such as wills, trust instruments and depositions
□ Consider issues that may arise in final settlement documents or the implementation of a settlement
- Are there tax or business issues and who will resolve them?
- How will later disputes be resolved – further mediation followed by an arbitration or just an arbitration?
- Who will be the mediator/arbitrator of any later disagreement?
□ Prepare a draft of a CR2A Settlement Agreement on your computer and bring it with you to the mediation so that the parties may move quickly and seamlessly from a verbal to a written agreement
□ PREPARE, PREPARE, PREPARE!