How do I get the other side to agree to my choice of mediator? Karen Kukla is available to contact and talk with parties about a proposed mediation. We do not charge for a mediation unless it is scheduled. Ms. Kukla can answer questions about Mr. Rotman’s experience and provide information and tailored references to you or your opposing counsel.
Should we conduct discovery before mediation? It depends. You want to have enough information to evaluate your case and inform the settlement discussions. But keep in mind this is not the same detail required if the matter were going before a judge or jury. We can help facilitate an informal pre-mediation exchange of information or an agreement on limited discovery for cases in the early stages of litigation or where no claim is yet filed.
Who should attend the mediation? We require the attendance of decision-makers for all principal parties. A decision-maker is a person who has the ability to make real-time decisions based on information or evaluations arising during the course of the mediation and who does not have to call out of the room for authority. Not bringing a decision-maker with real and discretionary authority is the single greatest impediment to achieving a resolution and finalizing an agreement. Insurance company representatives with decision-maker authority should attend the mediation.
What are your requirements for mediation briefs? We ask that counsel keep their briefs to 10 pages. Briefs should consist of: (i) a concise, chronological statement of facts; (ii) a clear summary of the issues in dispute (iii) a statement of your position on the issues, including reference to evidentiary support; (iv) your response to your opponent’s position; (v) the litigation status; (vi) a damage analysis; and (vii) a history of any settlement discussions and statement of your expectations for the mediation. It is not necessary to attach lengthy exhibits; consider excerpting/highlighting the relevant portions and have the original documents available at the mediation. We welcome informal confidential communications about any issues that might impact the mediation process and resolution, including the dynamics or history between the parties or counsel.
Do you recommend shared or confidential briefs? We generally recommend that you share as much information as possible and submit any confidential information in a separate memo addressed solely to the mediator.
Should we bring a settlement agreement draft to the mediation? Yes! Most successful mediations end in full settlement agreements. Bringing a draft settlement agreement to the mediation (on a laptop or thumb drive) is a good idea. Think through in advance of the mediation the terms and provisions (both general and specific) that are important and relevant to this matter and your client.
Do you require a joint session? David Rotman strongly prefers a joint session. It is a forum which provides counsel and principals an opportunity to speak directly to the ultimate decision-makers for the opposing party(s) while educating them as to why you see your position as you do. Mr. Rotman’s summary of each party’s presentation ensures that the other parties really hear and understand your position.
How long will the mediation last? You should come prepared to work into the evening if necessary. We respect the busy schedules of mediation participants, many of whom have traveled to San Francisco for the mediation. David Rotman is renowned for his willingness to stay as late as necessary to help the parties reach a resolution at their mediation session; this may be more than eight hours.
What happens if a case does not settle at the mediation? Generally, matters do not settle at the mediation for one of three reasons: (i) the parties find that they do not have sufficient information to reasonably evaluate their positions; (ii) one or both parties remain intractable; or (iii) a party does not have sufficient settlement authority at the mediation.
(i) While matters are routinely resolved at every stage of litigation including pre-litigation and pre-discovery, there are instances when a dispute is brought to mediation before the parties have enough information about the case to evaluate settlement. If additional information is necessary to assess the realistic options for resolution,
Mr. Rotman will work with parties to formulate an agreement for limited discovery or information exchange focused on clarifying key issues impacting resolution. We will check in with counsel to track the litigation and new developments and either continue settlement negotiations telephonically or schedule a follow-up session as soon as practicable.
(ii) Sometimes a party takes a negotiating position from which they will not move, no matter what it learns at the mediation. We will continue to keep the lines of communication open as the litigation proceeds, with an eye toward identifying information that may cause an intractable party to view their position differently.
Mr. Rotman will then work with the parties to determine the best way to proceed.
(iii) The single largest reason cases do not settle during mediation is lack of final decision-making authority at the negotiating table. Mediation participants always learn something they didn't know before the mediation: David Rotman's perspective as devil's advocate of how a judge or jury may view the case. Mediation is a fluid process; information is surfaced and evaluated. Mr. Rotman's insightful feedback is critical for the parties' evaluation of the realistic options for settlement. A party's decision to settle or not is the result of a full day of analysis, evaluation, and negotiating that cannot adequately be conveyed to a decision-maker in a phone call or series of calls. In this situation, we will contact counsel after the mediation and strategize how best to bring the necessary voices to the table for a follow up session.