April 04, 2019

By: Richard P. Byrne, Esq.

Parties should take advantage of the opportunity to speak with their Mediator in advance of an upcoming Mediation session. Although admittedly not routine, nothing precludes counsel from initiating such communications.

The topics may range from the purely procedural (e.g., nature and length of pre-Mediation statements, parameters on exhibits and/or scope of opening statements), to substantive overviews on the factual and legal issues to be addressed at the Mediation and/or, perhaps most importantly, to the subtle dynamics of the case (e.g., the underlying emotional drivers or personalities of the litigants and counsel).

It can be very valuable to preview some of these issues for your Mediator. Not only does it allow the Mediator the opportunity to digest and process particular items in advance of the parties' appearance at the Mediation session, it can, on a practical level, save time at the Mediation itself, and lead to a more effective session.

This is particularly true in forewarning the Mediator regarding certain landmines or “hot button” issues through which he or she will need to navigate. Parties always bring history – and, sometimes, baggage – to a Mediation and the more in tune the Mediator is with that background beforehand, the better prepared the Mediator will be. Have there been prior (unsuccessful) negotiations? Does one of the litigants have undue expectations? Is there an emotional component to the case or a prior relationship between the parties that is influencing the decision-making? And, as a result, will there be certain non-negotiable points (e.g., confidentiality/non-disparagement)?

These are the types of items which can be raised and discussed with a Mediator prior to meeting with an eye toward establishing a better foundation for the forthcoming negotiations. This Mediator, for one, encourages these types of advance discussions.
Ultimately, the goal is to resolve the matter and any steps in furtherance of that goal – even before the session itself – are welcome.


Meet the Author

Richard P. Byrne, Esq. is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and is available to arbitrate and mediate cases throughout the United States. In 2019, for the fifth year in a row, he was voted a Top 3 Mediator in the country by the National Law Journal Reader Rankings Survey and was also voted a Top 3 Mediator by the 2018 Corporate Counsel Best of Survey. Also, in 2018, for the third straight year, he was named a National Law Journal Alternative Dispute Resolution Champion, as part of a select group of only 46 nationwide. Further, he was ranked a Top 10 Mediator in New York State by the 2018 New York Law Journal Reader Rankings Survey for the fifth year in a row.

For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone at 516-941-3228.