Logistics
Mediation Briefs
Marcus typically requests that each party submit a concise brief in advance of the mediation outlining the basic facts of the case, their legal arguments and supporting authorities, the status of prior settlement discussions, their current settlement positions and any other issues which counsel believe are important. Briefs may either be submitted in confidence or shared with the other side – whichever counsel choose. Briefs typically should be submitted at least seven (7) days before the mediation date. This allows time to review the briefs and identify any issues which may need to be discussed during the pre-mediation conference calls with counsel.
Pre-Mediation Conference
Marcus typically conducts a telephone conference separately with counsel for each side in order to discuss any concerns counsel may have regarding the conference, which party representatives will be attending the conference and whether they have settlement authority, counsel’s views regarding a joint session and any other issues that may need to be discussed prior to the mediation. The primary purpose of the pre-mediation conference call is to identify and address any procedural issues that should be resolved prior to the mediation so that the process is as efficient and productive as possible.
Presence of Decision Makers
In order for the mediation process to be effective, it is critical that the persons with settlement authority be present. In cases where insurance coverage is involved, Marcus typically recommends that the insurance representative attend the mediation. If it is not feasible for the insurance representative to attend in person, the representative should participate by telephone or videoconference throughout the entire process. Typically, it is helpful for the persons involved in the key events giving rise to the dispute also attend the mediation so that they can discuss specific facts and be evaluated as potential witnesses. In addition, in cases where strong emotional feelings are involved, it is sometimes important for one party to hear directly from the other in order to correct misunderstandings and help diffuse lingering animosity.
Class Actions
Mediating class actions is far more complex than single plaintiff cases and involves negotiation of many legal and procedural issues. Typically, issues which need to be negotiated in class action mediations include the scope of the class (or subclasses), the settlement fund amount, the formula for calculating individual settlement awards, enhanced fee awards for class representatives, the scope of the release, attorneys’ fees and expenses, settlement administration costs, notice and claims administration procedures, publicity relating to the settlement, and the court approval process. Depending on the nature of the claims and demands by class representatives, numerous other case-specific issues also may need to be negotiated, such as changes to operating procedures, personnel policies, and oversight by an external monitor.
During the pre-mediation conference involving class litigation, Marcus will focus the parties on issues that are particularly important for effective mediation of class actions, including what information has been (or will be) exchanged between the parties prior to the mediation, the nature of the relief sought by plaintiffs (including whether any changes to business operations or other equitable relief is sought), which party representatives will be attending the mediation and whether experts or consultants should attend, the procedural posture of the case and whether there have been rulings by the court regarding any threshold legal issues, and the issues which counsel anticipate will be the most difficult to resolve. Due to the complexity of class action mediation and the high stakes involved, it is particularly important that the parties agree on the structure of the process and are adequately prepared to make informed decisions during the mediation.
During the mediation, Marcus will facilitate the parties’ negotiation of the many legal and procedural issues that must be resolved to reach class settlement. If needed, Marcus will help the parties resolve any additional disputes that may arise in the course of finalizing the settlement documents and obtaining final court approval.
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