General Mediation Requirements

Pre-Mediation Settlement Conference

Before mediation conference Counsel for the parties (or the parties themselves) should meet at least once prior to the mediation and engage in a good faith attempt to negotiate a settlement of the action. Unless the parties have attempted to settle their dispute on their own, a
significant amount of time is spent at the mediation conference defining the parties’ settlement positions and otherwise setting forth a framework upon which a settlement can be based. This requirement may be waived in appropriate circumstances.

Mediation Memo & Operative Pleadings

• A copy of this memo is to be provided opposing counsel at the time it is provided to the mediator.

A concise memo (5-10 pp, letter form preferred) from each separately represented party:

• identifying by name and title or position the person(s) with decision-making authority  who, in addition to counsel, will attend the mediation conference for that party and, if applicable, identifying any person(s) connected with a party opponent whose presence  at the mediation conference might substantially improve the productivity of the proceeding;
• describing briefly the substance of the dispute, addressing key liability and damages issues, and discussing the most significant evidence;
• identifying any discovery or motion activity that is likely either to significantly affect the scopeof the litigation or to enhance the parties’ ability to assess the case’s settlement value or, for other reasons, to improve prospects for settlement; and
• enclosing a copy of the party’s operative pleading (complaint/arbitration demand, answer/response, counterclaim, reply)

Confidential Settlement Memo

• This memo is to be provided to mediator only and is not to be provided to opposing counsel.

A short memo (3-4 pp, letter form preferred) from each separately represented party:

• summarizing the history and current status of settlement negotiations;
• setting forth the party’s current settlement position, demand or offer;
• estimating the legal fees and costs incurred to date by the party and a good faith estimate of the amount of trial/hearing time and additional expense required to try the case to conclusion if the case  is not settled at the mediation;
• identifying underlying personal or business interests, concerns, objectives, or other considerations relevant to settlement; and
• identifying “other” consequences to the party (and its opponent) if a settlement is not negotiated in the near future.