February 19, 2018

Mediation Procedure

For information about Dana Curtis’ availability and to schedule a mediation, contact her office at office@eldermediationgroup.com or call 415.331.5158.

Ms. Curtis is available to discuss her approach to mediation and whether a particular case is appropriate to her practice. She provides fifteen minute consultations with each party or lawyer free of charge.

Disputes involving elders and their adult families benefit from early planning to accommodate the unique challenges of these cases, including multiple and complex issues, high conflict parties and issues related to the elder’s participation. Ms. Curtis takes great care at the outset of each case to understand the situation and the parties’ goals and, based on this information, to develop an appropriate mediation plan. Ms. Curtis works with parties who are represented by lawyers and those who are not. Shortly after she is retained, she will schedule a joint telephone conference with lawyers, when parties are represented, or with parties, when they are not.

The pre-mediation call usually includes discussions of the following topics:

  • A brief description of the nature of the dispute;
  • A brief summary of the legal issues, if any, and the procedural background of the case, if it is in litigation;
  • Information about the participants, including the nature and quality of their relationship, their experience and comfort level with mediation and their goals for the mediation;
  • The history of the parties’ previous efforts to resolve their dispute;
  • The mediation plan, including the components of the plan and procedures for developing it;
  • Whether the mediator will meet privately with the parties before mediation, with or without lawyers;
  • If there will be no further pre-mediation meetings, suggestions about the format for the mediation, including the location and timing of the mediation session(s), an outline of the issues to be addressed, the role of the parties and the mediator, communication guidelines and plans for documenting any agreement;
  • The need for advance information essential to be able to resolve the dispute at the mediation, for example property valuations, accountings, care plans or trust documents;
  • Fees, including their allocation and the deposit of fees;
  • Suggestions for preparing for mediation or pre-mediation discussions; and
  • Any additional information that would be helpful to Ms. Curtis or the parties in planning and preparing for the mediation.

Ms. Curtis may meet with parties individually prior to the mediation in order to learn more about the situation and to help the parties prepare for mediation. These meetings, which are usually confidential, are especially important in high-conflict cases.

When parties are represented by lawyers, with a few exceptions, the lawyers submit mediation statements one week before mediation. They usually exchange them, although in special circumstances they may decide to submit them privately to the mediator.

Mediation statements commonly include discussions of the following topics:

  • A summary of the factual background of the conflict;
  • In litigated cases, a summary of the procedural background and the legal issues and arguments;
  • The history of prior efforts to resolve the conflict, including settlement proposals the parties have exchanged;
  • An analysis of damages, where relevant; and
  • The interests of both parties.
  • When parties are not represented, they generally do not submit written mediation statements in advance of mediation.

Ms. Curtis also encourages lawyers or unrepresented parties to provide her with an additional, confidential statement not shared with the other side. This informal, confidential statement may include any information that might be useful to enable her to assist in resolving the dispute, but she specifically encourages lawyers or unrepresented parties to consider addressing some or all of the following questions in that confidential submission:

1. What would you (or your clients) like to accomplish at this mediation, and what does Ms. Curtis, as the mediator, need to understand to help you accomplish your goals?
2. What needs of your clients must be met for a resolution to be reached?
3. What needs of the opposing party (or parties) must be met in order for a resolution to be reached?
4. What do you see as the obstacles to a negotiated resolution, and what ideas do you have to overcome them?
5. What are the consequences for each side if no settlement is reached?
6. In litigated matters, what is your estimated budget to litigate this case through trial?

Whether lawyers or unrepresented parties submit an additional, confidential statement, Ms. Curtis strongly encourages everyone to reflect on the foregoing questions in preparation for the mediation session.

Mediation sessions proceed according to the mediation plan agreed upon by the parties and/or their lawyers and Ms. Curtis. When parties are not represented by lawyers, with few exceptions, the parties meet jointly during the entire mediation and do not meet separately with the mediator.

Joint and Separate Sessions
In cases involving lawyers, mediation generally begins with a joint session, sometimes simply for the purpose introducing the participants and the mediator. In other cases, the participants stay together beyond the introductions to exchange their perspectives on the dispute and any information they believe would contribute to a successful resolution. In cases where the parties’ business or personal relationship is integral to the dispute, the participants often utilize the joint session to enable them to understand each other’s point of view about the situation, the impact it has had on them and their underlying interests and potential solutions to address them.

In most mediations in which lawyers are present, at some point participants choose to separate and have private, confidential discussions with Ms. Curtis. Occasionally, the entire mediation is conducted in separate sessions, but more commonly private conferences follow the initial joint session. Separate sessions may be useful to accomplish the following purposes:

  • To share sensitive information about the case or their perspectives with the mediator that they did not feel comfortable disclosing to the other participants;
  • To seek assistance from the mediator in communicating information to the other participants that they did not communicate in the joint session, in which case Ms. Curtis may help a participant prepare to deliver the information directly to the other participants, or participants may choose for her to do so on their behalf;
  • To help them develop and analyze proposals and create a negotiation plan;
  • To explore creative ideas for resolving the dispute;
  • To encourage participants to reflect on and re-examine their perspectives on the dispute; and
  • To conduct a methodical case analysis that incorporates not only their own opinions but also information about the other participants’ perspectives and that of the mediator.

Concluding the Mediation
In cases where lawyers are not involved, procedures at the conclusion of mediation depend on the issues involved and the needs of the parties. Typically, following each mediation session, Ms. Curtis sends the parties a letter summarizing the parties’ agreements, or tentative agreements, and setting forth the agenda for the subsequent session. When the mediation ends in agreement, the parties typically sign a binding written agreement prepared by lawyers, the parties or Ms. Curtis, depending on the circumstances and the parties’ needs.

Because Ms. Curtis sees follow-up as an indispensable phase of mediation, she follows up after each mediation session. In cases that resolve at the mediation, she will check in to see how documentation or implementation of the settlement is progressing and to get feedback about the mediation process.

In cases that do not resolve, Ms. Curtis will follow up in a manner agreed at the mediation. Where there is not a future negotiation plan, she will call from time to time in search of a way to resolve the dispute.

Many adult family mediations end with agreements that require considerable post-mediation activity. In these cases, Ms. Curtis prefers to conduct periodic telephone check-ins to keep the parties on track. When mediated agreements involve ongoing communication between siblings, these periodic calls can serve as “tune-ups,” that increase the likelihood that the parties will not lapse into their formerly difficult dynamics.