Archives for March 2024

March 18, 2024

At the end of the mediation process, the mediator typically delivers a closing statement, marking an important moment in the proceedings. Closure is essential to ensure that all parties have addressed their concerns and interests, including any underlying relationship issues. Mediation ends in agreement, partial agreement, or no agreement, with the mediator reinforcing commitment to any agreements reached. Typically, the mediator’s closing statement expresses gratitude to the parties for their participation and effort throughout the mediation.

A mediator’s closing statement typically covers:

• Substantive Elements: Ensuring parties understand resolution terms.
• Procedural Details: Outlining next steps, timelines, and responsibilities.
• Psychological Satisfaction: Ensuring parties feel heard and acknowledged, potentially facilitating apology or forgiveness to aid in reconciliation.
• Relational Outlook: Commending parties for open communication and expressing optimism for positive future interactions.

In cases of partial or no resolution, the mediator focuses on terminating the mediation positively, acknowledging progress and any agreements made and offering hope for resolution of remaining issues. The mediator may also highlight achievements such as information sharing during mediation that left the dispute in a better state than when the mediation began. The mediator often encourages parties to continue efforts, with the possibility of further mediation sessions.

Counsel representing parties during mediation can also play important roles in closing and termination:

• Ensuring clients grasp agreement terms and consequences.
• Documenting the agreement and ensuring its terms are clear, understood, and legally binding.
• Managing clients’ expectations regarding the mediation process’ outcome, particularly in cases of partial resolution or failure to reach an agreement.
• Advocating for clients by ensuring that any outstanding client concerns are addressed in the closing statement.
• Guiding clients on future settlement discussions and next steps after termination.

Counsel’s involvement in the closing and termination of mediation enhances understanding, cooperation, and resolution, maximizing mediation effectiveness.

To read how Castaybert PLLC can assist you with mediation, click here.

March 18, 2024

In mediation, gathering information is crucial for parties to understand the core issues driving the dispute. Mediation offers a streamlined process of disclosure in a confidential setting, bypassing many of the complexities of litigation. While litigation often involves extensive and burdensome discovery processes, mediation allows parties to focus only on essential information necessary to reach a resolution.

In negotiation and mediation, information serves not only for case evaluation but also to address underlying causes of disputes, understand party dynamics, and evaluate the feasibility of potential agreements. Mediation involves developing a much wider range of categories of information compared to litigation. Counsel should keep in mind that they are seeking to develop this wider assortment of information, and that mediation-based disclosure serves a distinct purpose from litigation discovery.

Despite considering a broader range of information, discovery in mediation typically involves less time and cost compared to litigation. The content and forms of disclosures in mediation can be abbreviated, reducing the time and expense typically associated with litigation discovery. Parties and their counsel can agree on issues without the need for exhaustive collection of evidence in admissible form. Instead of formal discovery, the mediator may also ask that parties simply list the core information needed in a letter and that they produce the core documents and information needed for negotiation.

The mediator plays a crucial role in guiding the discovery process during mediation. For instance, if counsel is hesitant to make certain disclosures because it may give the other party and counsel insight into case strategy that might influence future testimony if the case does not settle, the mediator may facilitate discussions on the necessity of that information and help assess the risks and benefits of disclosure. Mediators can also help speed the discovery process by assisting in setting discovery schedules and encouraging effective information sharing to facilitate negotiation.

Counsel also play an important role in the information gathering and disclosure process in mediation. To reduce informational asymmetry and enhance mutual understanding, counsel can prepare and exchange key documents, damages spreadsheets, key facts and emails, and mirrored hard drives with searchable data.

Discovery in mediation benefits from being conducted in a confidential setting, which fosters open communication and promotes settlement. While confidentiality increases parties’ willingness to disclose information, counsel and parties must be aware that once information has been disclosed in mediation, if the mediation terminates without resolution, a party can serve a discovery demand or ask questions in a deposition which are designed to elicit this information.  

Mediation offers unique opportunities for information sharing. Disclosures in mediation are made in a streamlined and confidential environment, facilitating effective negotiation and resolution of disputes. Counsel and parties, however, should remember that information disclosed in mediation may also be discoverable in later litigation if the mediation fails. 

To read how Castaybert PLLC can assist you with mediation, click here.