WHAT TO EXPECT FROM MEDIATION WITH THE DISTRICT MEDIATOR
Mediation is a facilitated negotiation process. The mediator is neutral. The mediator’s job is to fully explore ways that the dispute might be resolved in a way that is mutually acceptable to the parties, rather than by a decision imposed on the parties by a judge or jury. As part of this process, the mediator will help the parties identify and analyze their interests, risks and potential benefits in the context of the litigation. This may include discussion of the merits of each party’s position in the litigation; however, discussion will not be limited to that topic.
Lawyers with primary responsibility for this case and all named parties are required to attend in person. In the case of a corporate entity, a representative with authority to bind the party to a settlement and with settlement authority must attend.
The process is confidential. In addition to the protections provided by the Federal Rules of Civil Procedure and federal statute, Local Rule 16.3(c) prohibits disclosure of any information other than a report to the assigned judge that the case was, or was not, settled. Confidentiality assures the parties that they can be open with the mediator about all aspects of the dispute without fear of prejudicing their positions in the litigation. The more information a mediator has available, the better able he is to fully explore settlement.
Five business days before the mediation each party should submit a brief statement of the factual and legal issues, a description of previous settlement efforts, an analysis of all parties’ interests in the dispute and settlement, and the names and positions of all persons who will attend the mediation. These should be mailed, faxed, or emailed to the mediator at the address listed above. They should not be filed with the Court and should not be served on the other parties. Mediation Statements are not legal briefs or arguments. They are an opportunity for counsel to share with the mediator information and insights that will be useful in acquainting the mediator with the dispute and the factors that might lead to settlement. The mediator has access to the case docket, so do not include filings from the case.
Mediation typically starts with the parties meeting together to learn the ground rules for the mediation and to address procedural questions. This is followed by a series of caucuses involving the mediator and each of the parties (and their counsel) separately. In these caucuses the parties will explore their interests, brainstorm possible settlement approaches, and develop and exchange proposals. These sessions are informal and active participation by the parties is strongly encouraged. Parties are welcome to suggest a different format, at or before the mediation, if they think it would increase the effectiveness of the mediation.
If an agreement is reached, a written agreement including the material terms will be drafted and signed, or the agreement will be read into the record in the case. This provides the parties with concrete evidence of their agreement and allows the confidentiality of the mediation to be maintained. If no agreement is reached, but the mediator believes that further settlement efforts would be productive, the mediation will be continued in progress, generally with the parties agreeing to take specific steps that will move them closer to agreement. If an impasse is declared, the assigned Judge will be notified that the case was not settled and the mediation has been terminated.