Before convening the parties, Frank thoroughly reviews their written submissions and gains a strong understanding of the factual background, the legal issues, the relevant participants and the context for the dispute. If appropriate or requested by either party, Frank will conduct a separate pre-mediation call with each side in advance of the mediation session, in order to learn more about the dynamics of the conflict and any obstacles to resolution.
At the mediation, Frank meets with the parties in joint and private sessions, listens to each side’s views, identifies interests, addresses underlying concerns, and explores options. Frank helps the parties evaluate their strengths, weaknesses, risks, opportunities, and potential outcomes.
When the parties achieve a resolution, Frank assists them in structuring and documenting the settlement terms, so that a durable agreement may be secured. If the parties decide not to resolve their conflict at the mediation session, Frank remains engaged, serving as an ongoing resource to facilitate a potential resolution at a later stage.
Frank will request that each party to submit a written mediation statement in advance of the session. Specifically, Frank will ask each side to: (i) identify the names and roles of the individuals who plan to attend the mediation; (ii) discuss the relevant facts, the legal issues, and the damages or other relief sought; (iii) summarize any settlement communications to date; (iv) identify potential obstacles to a resolution; (v) state whether opening statements by the attorneys/parties would be beneficial and why or why not; and (vi) provide any other material information that the party believes would be helpful (while remaining judicious and appropriately concise).
Frank encourages counsel to consider the mediation statement an opportunity to submit something different than a trial brief, summary judgment motion or other work of pure advocacy. In order to assist Frank in optimizing the chance of reaching resolution, it is most beneficial if the mediation statement addresses not only strengths of your side’s case, but also weaknesses, unique challenges, dynamics, and psychological barriers. If there are topics that are more suitable for a verbal discussion, request a pre-mediation call to address them.
Frank invites the parties either to send the statement to him on a confidential basis or to share it with the other side too, whichever that party prefers. Alternatively, a party is welcome to share its core mediation statement with the other side and provide a confidential supplement to Frank for his private review. Frank also invites the parties to prepare (and perhaps exchange in advance) a draft Memorandum of Understanding (or term sheet) outlining the structure and major components of any potential settlement.
In order for the mediation process to be effective, it is critical that the individual parties, as well as corporate and insurer representatives (if applicable) with full authority to settle this dispute attend the mediation. Note also that certain court rules (including the local rules for the U.S. District Court for the Eastern District of Missouri) REQUIRE that all parties and their counsel attend in person (or, if mutually agreed, by video conference), unless the parties secure a waiver of that requirement from the Court in advance. Those rules REQUIRE corporate parties to send a representative other than outside counsel who has authority to settle and who is knowledgeable about the facts of the case. Further, those rules REQUIRE insurer representatives to attend in person (or by video conference) if their agreement is necessary to achieve a settlement. Finally, those rules REQUIRE that a governmental entity who needs approval from a governing board or public official send a representative with full authority to negotiate on behalf of and to recommend settlement to the board or official.
If a named party, insurer or other relevant participant in the dispute is NOT planning to attend the mediation in person (or by video conference), please notify the other side (and the Court, if applicable) in advance, and then inform Frank that you have received consent for that person not to attend.
In some cases (but not all), Frank will invite the attorneys (and parties, if desired) to make brief opening remarks to the other side. Frank attempts to make a case-by-case determination on what approach would be most beneficial. Unquestionably, there are statements that an attorney or party could make to the opposing party directly that would be counterproductive. There are also situations where a joint exchange between the parties would be inappropriate. Nevertheless, in many cases, a carefully crafted and delivered opening statement can be extremely beneficial.
If opening remarks will be made at the mediation, Frank encourages counsel not to approach them like they would opening statements or closing summations at trial. The primary audience at trial is the judge or jury, and the goal is to persuade that fact-finder. The primary audience at mediation is the opposing party; it is unlikely that you will persuade that party that it is wrong and your side is right. Rather, the goal should be to help the other side understand where you are coming from and how a fact-finder might view things. It is possible to deliver a powerful and effective mediation statement while remaining respectful and without being toxic.
If Frank decides to forego opening statements by the attorneys and parties, he will usually conduct an introductory joint session near the beginning of the mediation, in which he will make some opening remarks of his own, in order to set the course for the process. If the parties believe that even such an introductory session without party presentations would be inappropriate or detrimental to the process, please notify Frank in advance.