Tip from the Trenches -- 
Pre-mediation information exchange is essential to provide impact on the case evaluation set by the other side.
Often employer representatives in employment cases arrive at the mediation with a predetermined top dollar they are willing to offer in settlement. This is especially true for insured claims and other situations in which a round-table discussion or several levels of authority are necessary to assess the value of a case. When this entire valuation process takes place prior to the mediation and there is very little flexibility beyond the specified dollar amount, the mediation process can feel less like a true negotiation. As a mediator in these situations, my ability to facilitate or have any influence on the process is greatly limited.
In my practice I routinely encourage that plaintiff counsel to share as much information as possible with the defense counsel. This initial disclosure could have significant impact on the pre-mediation case evaluation process and the ultimate dollar amount assigned to settle the case. Plaintiff counsel should share their mediation objectives, case evaluation and underlying support, and any other relevant information to allow the defense to evaluate the case comprehensively. At the same time, defense counsel should similarly disclose information supporting its case evaluation, the criteria used, and any other material considerations influencing the evaluation.
To increase the likelihood of a successful mediation, this information exchange should occur as early as possible and well in advance of the mediation. Ideally, plaintiff's case evaluation should be part of the defendant's round-table discussion that sets the value of the case. The defendant or claims adjuster should have sufficient time to share it with the appropriate levels of management and other decision-makers involved in setting the dollar amounts for each case.
This
information exchange helps ensure that each side will have input as to how
the other side evaluates the case in the crucial discussion that occurs
prior to the mediation. The information can be shared via mediation memos and exchanged in advance of the mediation. This mutual disclosure is an important tool that is especially useful when high monetary demands will be made. To adequately prepare, I routinely request that memos be submitted to me and exchanged between counsel a week ahead of the mediation. While, in certain cases, this may be too late to be a part of the round-table discussion setting the value of the case, it invariably equips the parties with crucial information that facilitates a successful resolution.
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Recent Articles
The Ninth Circuit recently affirmed that mediation confidentiality prevents the use of mediation communications against a lawyer in a legal malpractice claim. The defendant lawyer advised his clients against settling a case in mediation that they later lost at trial. The Oregon District Court granted summary judgment to the lawyer because the evidence against him was inadmissible due to Oregon's mediation confidentiality law. Fehr v. Kennedy
What happens when doctors admit their mistakes to patients? Malpractice lawsuits and claims decline along with the cost of compensation to patients and legal fees according to a recent article in the New York Times. Add University of Michigan Health System to the list of hospitals that have instituted disclosure and compensation programs which prove to reduce litigation and liability costs -- contrary to dire predictions. When patients are given an alternative to litigation both sides benefit from the cost-effective and prompt dispute resolution process. My observation of employment disputes over the past 20 years convinces me that corollary holds true for employment disputes.
Decision analysis is an effective tool for attorneys to implement in their case evaluation in preparation for mediation and for use during mediation as more variables arise that impact predicting chances at summary judgment or at victory in trial. California mediator Bob Logan explains the decision analysis framework in his article. This case evaluation method is also an important tool for breaking impasse in mediation.
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