Procedures & Guidelines
Initiating Mediation
Mr. Paul's availability for scheduling a mediation session can be obtained by email inquiry or telephone. Mediation dates are booked on a first-come, first-served basis. Mr. Paul will try to schedule mediation on short notice whenever possible, and can be flexible as to location or travel depending on the needs of the parties. Before scheduling, please feel free to call the office to discuss whether a particular case is appropriate for mediation or if you would like assistance with bringing the other party to mediation.
When seeking to reserve a mediation session, please be prepared to provide the following administrative information: (a) all parties' names, including representatives and insurance carriers where applicable, as well as all other participants; (b) name, address, telephone and fax number, and email addresses for all counsel; (c) the parties' agreed arrangement regarding allocation of the mediation fee; and (d) the agreed upon location of the mediation. Mr. Paul's office will promptly research and disclose any potential conflicts of interest.
Once a mediation date has been scheduled, Mr. Paul's offices will send to all counsel a confirmation letter including the Agreement to Mediate and Confidentiality Agreement.
Download printable form: Mediation and Confidentiality Agreement - 65K .DOC
Mediation Briefs
As part of Mr. Paul's preparation, mediation briefs are strongly encouraged to assist in gaining an understanding of the factual background of the dispute and positions of the parties. Mediation briefs must be submitted at least five (5) days prior to the mediation, and should include:
- A summary of the material facts giving rise to the dispute.
- The legal claims asserted, including cited authority.
- Key exhibits, witness statements, and/or expert witness reports.
- The procedural status and posture of the case.
- The strengths of the client's positions.
- An analysis of damages.
- Prior settlement discussions.
- Any other information believed to be helpful to facilitate resolution (e.g. negotiation leverage, perceived common ground).
Who Must Attend
In order for the mediation to be successful, it is critical that all decision-makers and central participants be physically present at the mediation. Therefore, each side is expected to ensure that the principal parties and any other person whose approval is needed for resolution is in attendance at the mediation. In those instances where there is insurance coverage for a disputed claim, defense counsel should arrange for an insurance representative to attend the mediation. If not feasible, the insurance representative should at a minimum be available by telephone to participate throughout the entire mediation. Counsel should confirm in advance that all needed participants will be present during the mediation.
Pre-mediation Conference
A few days before the mediation, Mr. Paul will attempt to speak with each of the party's counsel in order to further prepare for a productive and efficient mediation. This is the time to discuss:
- Ideas to improve the effectiveness of the process given the particular dispute.
- Relationships between the parties, expectations, and any underlying interests.
- Potential impediments to settlement.
- Opportunities to resolve or make progress regarding any additional disputes between the parties or in the litigation (e.g. discovery, cost issues).
- What, if anything, needs to occur for the parties to be fully prepared to reach resolution at the mediation session (e.g. document exchanges, expert reports).
- Confirmation of all necessary parties and decision-makers at the mediation, as well as any other participants.
- The status of any insurance coverage and participation of the carrier.
- The logistics of the mediation, including ensuring that all parties understand and are comfortable with the process.
To enhance the likelihood of a successful mediation, the mediation brief and all other relevant information should be exchanged by the parties to the extent deemed appropriate by counsel. This will assist all parties in formulating expectations to make realistic, informed settlement decisions during the mediation. The parties may also provide Mr. Paul with confidential information in letter format separate and apart from the brief. In addition to briefs, please bring any relevant documents to the mediation that will help illustrate the facts of the case or assess damages.
Confidentiality
All statements made in the course of mediation are treated as confidential settlement discussions (California Evidence Code Sections 1115 to 1128). All parties will agree that any statements made or information disclosed to the mediator is confidential and that disclosure cannot be compelled (California Evidence Code Section 703.5). Each participant will be asked to review the Agreement to Mediate and Confidentiality Agreement in advance, so that any issues relating to that agreement or confidentiality requirements can be resolved before the mediation. Before the mediation commences, all participants are required to sign this written confidentiality agreement. As soon as the parties schedule the mediation session with Mr. Paul, he deems the mediation to have begun for purposes of confidentiality.
At The Mediation
All parties will generally begin the mediation in separate rooms, with Mr. Paul briefly spending time with each party to review the process. Depending on whether the parties feel it would beneficial, the mediation will then include an initial joint session attended by all participants. In addition to presentations by counsel, the parties are given the opportunity to speak during this joint session. Therefore, please consider in advance whether you wish your client to do so. Joint sessions are moderated by Mr. Paul with the commitment of all parties to maintain civility and respect. Once a joint session is concluded, the remainder of the mediation is generally comprised of a series of alternative private caucuses between Mr. Paul and each of the parties. Once settlement is reached, there is either a concluding joint session with all participants or a final meeting with counsel to memorialize the settlement.
Early Neutral Evaluation
In appropriate cases and upon request, Mr. Paul is available to provide the parties and their counsel a neutral evaluation of each party's position in the dispute and help them resolve the dispute before suit is filed or early in the litigation process. In this capacity, Mr. Paul can facilitate frank and open settlement discussions without compromising litigation counsel's role as a strong advocate. The objective of early neutral evaluation is to help clients resolve disputes before investing significant amounts in litigation.