What is mediation?
Mediation is a voluntary, facilitated conversation between parties by a professional neutral or mediator. Mediations in Texas are effective because the process is confidential, allowing for frank and pragmatic conversations between the mediator and the parties. This confidentiality is not just to the mediation overall but also extends to party. This means a mediator will not share information that they have not been authorized to do so. This is they critical keystone that enabled realistic discussions between the mediator and each party.
Mediation resolves litigation because it creates an enforceable agreement between the parties called a mediated settlement agreement or “MSA.” The MSA is written mostly in plain text, with minimal legalese, to ensure that the parties understand what their obligations are under the agreement. A full MSA ends the litigation. There may be additional documents which need to be executed after the MSA to fulfill its requirements, but the MSA itself will control that process and the duties of the parties.
What information should I provide to the mediator ahead of mediation?
A mediator’s brief should be given to the mediator at least three days before the mediation so the mediator has time to review it and ask for additional information or to clarify issues. Since mediations are usually scheduled in half day or full day segments, a prepared mediator will only have to review information rather than hear it for the first time.
Generally, a mediator’s brief should include the following information:
- SUMMARIZE THE LITIGATION
- A short description of the case and the key legal issues driving the case
- The core factual issues that the parties agree on.
- What is the status of the litigation?
- Is there a docket control order/pending dates/a trial date?
- Is discovery complete?
- If not, what issues remain outstanding?
- Does this need to be addressed during the mediation?
- What settlement discussions have taken place to date?
- What is the last received settlement offer amount and terms?
- How was the offer communicated?
- What are the road blocks to settlement?
- What extraneous issues are affecting the settlement discussions?
- What are your stakeholder's interests?
- What are their concerns regarding a mediated settlement agreement?
- MEDIATED SETTLEMENT AGREEMENT
- What elements must your MSA have?
- If specific terms or release language is required, this should be provided ahead of the mediation.