Crafting the Effective Mediation Summary

FAQ’s, Considerations, Psychology, and Suggestions
Howard R. Marsee
Copyright 2014

WHO?
WHAT?
WHEN?
WHERE?
WHY?
©Howard R. Marsee, Upchurch Watson White & Max
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WHY?
WHO?
WHAT?
WHEN?
WHERE?
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WHAT IS MY GOAL?
NO SINGLE RECIPE BAKES EVERY CAKE.
GOALS MAY VARY FROM CASE TO CASE.
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Do I need a summary at all?
How complex are the facts or issues?
Prepare the mediator to advocate my client’s cause?
Self education?
Educate my client?
Educate the opposing party?
Create a framework for negotiation?
Establish a template for settlement?
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Closely intertwined with the questions of “why” and “what.”
“Who” gets the summary may depend on why I am crafting it.
“What” goes into the summary may depend on the intended recipient.
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To the mediator only?
Should I place restrictions on the mediator’s use of the summary?
The mediator and opposing counsel?
To co-defendants or other parties?
My client?
Should I consider sending different versions to different recipients?
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The content of the summary is directly dependent upon my goal and the intended recipients.
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What if I have no intention of settling and don’t want to share information with opposing counsel?
Will the summary be read by the opposing party ?
What effect will the summary have on my client?
Why not substitute my motion for summary judgment, my suit report or the pleadings in the case?
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Identify all parties and their respective roles.
Identify all counsel and any known mediation attendees (and their roles).
Enough detail to help the mediator effectively advocate my client’s cause.
A carefully reasoned analysis that demonstrates my mastery of the facts and law in the case.
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A general statement of my client’s goals at mediation.
For the mediator, any obstacles to settlement or special problems.
For the mediator, any client control problems (any parties).
Any insurance coverage or solvency problems.
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Any special provisions or contingencies that the settlement agreement must address.
Whether a partial settlement is an option.
Whether a structured settlement is an option.
The background of past negotiations or mediations.
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 Ad hominem attacks on parties or counsel.
Over-the-top hyperbole.
 Misstatements of fact or law.
Overly rigid declarations of
positions or intentions.
 Invective.
 Statements designed to
throw gasoline on the fire.
©Howard R. Marsee, Upchurch Watson White & Max 13

“When” is dependent on “why” and “who.”
Do I expect that opposing counsel will send a copy to his/her client?
How complex is the case?
Does the mediator typically get involved in the case prior to the formal mediation session?
Does my client need time to digest the summary?
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Am I providing copies to co-defendants or other parties?
What has the mediator requested?
What has the court ordered?
The principle of primacy?
The principle of recency?
The need for action, prior to mediation, by the mediator or other parties.
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Why not simply have my motion for summary judgment serve as a summary?
When should I provide the mediator with copies of pleadings?
Can’t I substitute copies of pleadings for my mediation summary?
Should I tell the mediator in the summary what my absolutely best settlement number or position will be?
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Should I designate my summary to the mediator “confidential”?
Should I ever file the mediation summary with the court?
Who bears the mediator’s fee for review of mediation summaries?
Do mediation summaries make a difference?
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•Plaintiffs: Ignoring relevant insurance coverage limitations.
•Defendants: Over emphasizing liability defenses and losing sight of damage issues.
•Both plaintiffs and defendants: failing to prioritize and refine the issues ( a blunderbuss versus a rifle- shot approach)
•Both plaintiffs and defendants: failure to be concise, objective and calm.
•Merely reciting a line item review of discovery.
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Brief recitation of the underlying facts.
Present posture of the case.
Recent developments that may impact resolution of the case.
History of efforts to settle.
Summary of respective legal positions.
Assessment of respective strengths and weaknesses.
Creative solutions available.
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Identify parties, representatives and counsel who will attend mediation.
Describe any sensitive issues that may impact resolution.
Prior/ future relationships of the parties.
Negotiating strategy of parties and counsel.
Suggested approaches you’d like the mediator to try.
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A good negotiator realizes that negotiation is persuasion and that we don’t persuade by intimidating, abusing, badgering, shouting, insulting, degrading or attacking. This principle is especially applicable to the written word. It remains on the printed page long after memories have faded.
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Thank You For Joining Us.
Upchurch Watson White & Max Mediation Group Daytona Beach  Maitland/Orlando  Jacksonville  Miami  Fort Lauderdale/Plantation  West Palm Beach
Please email cklasne@uww-adr.com with questions about course number, PDF, etc.
Please contact Howard at hmarsee@uww-adr.com with questions or comments regarding content.
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Crafting the Effective Mediation Summary

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