One of the primary benefits of mediating trusts-and-estates disputes is that the mediation session focuses everyone’s attention and brings the case “to a head” in much the same way as a trial date; except it happens before the parties pour huge sums of money – and time – into pretrial discovery and motion practice. Taking full advantage of this window of opportunity requires thorough preparation, and nothing beats a good checklist when it comes to making sure you’ve covered all your basis.
California attorney and mediator David Laufer has just published the “mother” of all premediation checklists in How To Prepare For Mediation: The Mediator’s Check List Of Key Legal And Factual Issues. The next time you’re getting ready to mediate a case pull this checklist, you’ll be happy you did . . . and so will your client.
THE MEDIATOR’S CHECK LIST
ALL INFORMATION WILL BE MAINTAINED IN THE STRICTEST CONFIDENCE.
A CONFIDENTIALITY AGREEMENT HAS BEEN SIGNED BY ALL PARTICIPANTS IN THE MEDIATION BEFORE THE EXCHANGE OF ANY CONFIDENTIAL INFORMATION.
1. Identify each party and title of all participants involved in the dispute.
2. Identify each Disputant required to be present during the mediation process.
3. Identify each decision maker who will not be present during the entire mediation process.
4. Describe any special needs, demands, interests and goals of each Disputant and Counsel.
5. Describe each claim, dispute and defense.
6. Describe each Disputant’s demands –the best case outcome-to be achieved in the Mediation.
7. Identify and quote the key statutes governing the claims and defenses.
8. Identify and quote the key cases governing the outcome of the liability issues. For example: Stout v. Turney (1978) 22 Cal.3d 718: “Of the two measures the ‘out-of-pocket’ rule has been termed more consistent with the logic and purpose of the tort form of action (i. e., compensation for loss sustained rather than satisfaction of contractual expectations) while the ‘benefit-of-the-bargain’ rule has been observed to be a more effective deterrent (in that it contemplates an award even when the property received has a value equal to what was given for it.)”
9. Identify the legal support for each demand for special, general and punitive damages.
10. Identify all defenses to the claims for special, general damages and punitive damages.
11. Identify key disputed facts discussed in the legal briefs.
12. Identify any key facts and legal issues overlooked by Counsel and the Disputants.
13. Identify other issues that may have an effect on the dispute, including change in case and statute law, change in management, change in key decision maker, vacations, trial dates, motions for summary judgment, divorce, employment termination, surgery, promotion, restructure of company, bankruptcy, sale of business, cancellation of insurance coverage, and the need for closure.
14. Should the mediation be conducted in segments? For example, if the claimant is rehired in wrongful terminations claim will the damage claim be resolved? If the franchisor reinstates a franchise will the damage claim be resolved? If the insurance company renews the insurance policy will the claim for bad faith claim be dismissed?
15. Identify possible resolutions of dispute by restoring, creating or enhancing a commercial relationship that the defendant may be able to provide as an alternative to payment of money damages. For example, a HR Director may be able to re-hire an employee without consulting with a higher authority, whereas the payment of a damage claim may have to go through several levels of review and approval and consultations with the company’s risk manger for reporting to an insurance carrier or audit committee.
16. Identify and quote the key provisions of the key documents each party relies on to support a claim or defense.
17. Identify key witnesses necessary to support each Disputant’s claim or defense, and summarize the testimony.
18. Identify key authenticated documents that have been exchanged to support or refute the damage claims.
19. Identify all out of pocket expenses (loss of earnings, medical bills , repairs) exchanged to support or refute the claim.
20. Identify a key decision maker who has surfaced during the mediation.
21. Have arrangements been made to assure that the identified decision makers will be present during the mediation?
22. Which newly identified decision makers will not be able to participate in the mediation process? Should the mediation be rescheduled?
23. Identify all people who have had input on the value of claim.
24. Will an expert (and describe the area of expertise) be helpful in resolving the Dispute.
25. Will it be necessary to postpone the mediation pending a verification of an appraisal, an expert opinion or other information that needs to be made available to key decision makers.
26. Identify all sources of insurance or other funds that will be available to pay a settlement.
27. What has been offered, demanded and rejected in any prior settlement discussions?
28. Describe what each Disputant demands as the minimum acceptable settlement to avoid a trial or other consequence.
29. Identify other cases or settlements of similar cases that have resulted in the minimum acceptable settlement value demanded during the mediation.
30. Is there a settlement in kind or a source of creating settlement value other than the payment of money that may result in resolution of the dispute? For example, in a dispute over the under-sized beams for a construction project, will the under-sized beams create value for another use for another project? In looking for value or settlements in kind, the Disputants should be encouraged to look for all potential sources of value.
31. Is a partial resolution possible?
32. Have the parties documented the settlement and final resolution in an enforceable format in compliance with the law?
33. Is the settlement confidential? If so, under what conditions may it be disclosed?
34. Has the mediator completed her case file, closure documents and procedures for any future references to the mediation. In court-annexed mediations the Mediator must file a form stating the matter resulted in partial agreement, total agreement or non-agreement.
35. For any information that has been disclosed to the Mediator in confidence, state how disclosure of that information affected the mediation?
36. Is there a dispute between the parties and their lawyers about the amount that is owed to the lawyers?
37. Is there a dispute between a party and her insurance company over coverage, legal fees and costs?
38. Identify the legal basis for the claim of recovery of reasonable attorney fees and costs.
39. Identify all objections to the claim for attorney’s fees and costs.
40. List all legal fees, expert fees and costs incurred by each party through the date of the first mediation session.
41. How much of any settlement payment will be paid to the lawyers?
42. Has the Mediator made arrangement for final payment of her fees, received evaluation forms of her performance and obtained permission to use favorable evaluations by Counsel and Disputants as references for marketing purposes?