Steven H. Kruis, Esq.

Mediation Procedures

Personal Attendance

Participants Should Personally Attend. Disputes are much more likely to resolve at mediation when the ultimate decision-makers attend in person. Therefore, everyone whose decision is necessary for settlement should personally attend the entire mediation unless the parties have agreed to the contrary. Obviously, the decision-makers include the parties, but may also include spouses, other adult family members (particularly with younger or older parties), insurance representatives, personal coverage counsel where an insured is being defended under a reservation of rights, lien claimant representatives, and anyone else who has a say in the decision to settle. If you do not intend to be accompanied by the ultimate decision-makers, please notify opposing counsel in writing, so the other participants may decide whether to proceed with the mediation.

Telephone Participation. Although Kruis Mediation (KM) strongly discourages telephone participation, if a decision-maker cannot personally attend the mediation, please notify opposing counsel in writing sufficiently in advance, so the other participants may decide whether to proceed with the mediation or reschedule it. If the other participants agree beforehand that a decision-maker may participate by telephone, please make arrangements to have your representative participate by calling in at the beginning of the mediation. KM will give you the appropriate phone number right before the joint session, and use the speakerphone, which will be placed in the middle of the conference room table. We ask that your representative agree to be available to speak with the mediator following the joint session and throughout the day during the private break-out sessions until the conclusion of the mediation.

Before the Mediation

Initial Caucus Before the Joint Session. KM has found that it is very helpful for the mediator to meet privately and briefly with each party (or groups of parties in complex litigation matters) before the joint session. This initial caucus puts the parties at ease, allows the mediator to explain how the mediation process will proceed, and gives counsel and clients the opportunity to ask questions or address concerns. The mediator may also make suggestions as to how the joint session may be made more productive. As in all subsequent caucuses, these discussions are confidential, unless the mediator obtains permission to share certain information with others.

During the Mediation

Joint Session. The odds for settlement are greatly enhanced if the parties have sufficient information regarding the dispute. Therefore, KM encourages the parties to use the joint session attended by all parties and counsel as an efficient way to exchange information. Please be prepared to summarize your position for the benefit of the other decision-makers in general terms. Discuss liability, causation, damages and, if appropriate, what you seek, in the most efficient manner including the use of demonstrative evidence and visual aids if they would save time or enhance your presentation. Summarize the evidence as opposed to proving your case at trial. Rarely should an initial presentation last more than thirty minutes per side. KM encourages participation by the parties as well as counsel. (Please see the article entitled, "Using Technology to Effectively Tell Your Story And Get Your Best Settlement During Mediations.")

Separate Caucuses. Following the joint session, the mediator will meet separately and privately with each party to discuss any information that was not exchanged in the joint session but may help resolve the dispute. The mediator will also lead a discussion in which the parties will explore the nuances of their case including strengths, weaknesses, likely ranges of outcomes at trial or arbitration, costs, and any non-economic interests relevant to settlement. Because all discussions are confidential and will not be disclosed to the other participants unless authorized, the caucuses afford the opportunity for realistic evaluation and exploration of settlement options without compromising any party's position.

Concluding the Mediation. Caucusing continues until parties reach an acceptable settlement, or determine settlement is not attainable at the mediation. If settlement is reached, counsel may decide to draft and have the clients execute a stipulation containing the key terms of the agreement. If settlement is not reached, the parties will discuss the impediments to settlement, and explore ways to ultimately reach resolution. They may discuss additional information that could lead to settlement, the need to include other parties in the mediation process, the desirability of scheduling a second session and/or follow up by the mediator, or designing another ADR process that would help the parties achieve resolution.

After the Mediation

If the case is not settled at the mediation, KM may follow-up by telephone or e-mail.

Mediation Brief Guidelines

Briefs Encouraged. Mediation briefs help the mediator prepare for the mediation by learning who will attend, the underlying factual basis, and legal issues of the dispute. Although they are not mandatory, briefs enable the mediator to be much more efficient during the mediation.

Length. Briefs may be in letter or pleading format. Less is more. Counsel are encouraged to keep briefs succinct. Focus on the big picture, and not on specific detail. Briefs should be three to fifteen pages, excluding attachments, depending on the complexities of the case.

Content. Identify the players, procedural history, facts, theories of liability and defenses, causation, and damages. Feel free to include the relevant pages of critical documents that go to the heart of the case, but do not attach discovery, medical records, depositions, expert reports, or pleadings. Describe any settlement discussions, and feel free to offer your thoughts about challenges to settlement and ways to overcome them.

When Briefs Are Due. Briefs are due seven days before the mediation, but should be submitted no less than two days before mediation, in which case they should be faxed to 619.702.2030 or e-mailed to steve@kruismediation.com.

Exchanged or Not Exchanged. KM strongly encourages the parties to exchange briefs so the other participants will understand your position and can prepare for a more meaningful exchange of information at mediation. Nevertheless, confidential briefs may be submitted. Consider exchanging briefs with opposing counsel, and then submitting a supplemental brief with confidential information to the mediator only. Before submitting briefs, please confer with opposing counsel regarding whether to exchange briefs. Do not assume they are being exchanged.