In anticipation of the surge in consumer mediations involving self-represented parties (“SRPs”) there are procedures that can be put in place to make the handling of consumer mediations easier, including providing SRPs with a form to follow for pre-mediation statements.
Upon receipt of a new mediation assignment, the mediator should consider setting up a pre-mediation meeting. Although a pre-mediation conference is not a requirement of the AAA’s consumer mediation procedures, and in some cases a pre-mediation conference in consumer cases may not be advisable in order to save costs, it may offer considerable advantages for the parties and mediator depending on the type of consumer mediation case.
The agenda items to cover during a pre-mediation meeting with SRPs include: what is mediation; how mediation differs from arbitration; the mediator’s role as a neutral; whether the mediation will be on Zoom, in person or a hybrid of the two; confidentiality; selecting the mediation date; the due date for pre-mediation statements; page limits; suggesting that the parties share excerpts of voluminous documents rather than attaching voluminous exhibits; and a discussion of whether pre-mediation statements will be shared or confidential. SRPs need to be instructed that if they choose not to share pre-mediation statements then the statements should be sent directly to the mediator and not filed on AAA’s Webfile space, which is a shared space. The mediator can also explain to the SRP the possibility of a second mediation if the first mediation does not resolve the case and the parties want to continue to mediate. Finally, there should be a discussion of the mechanics of reducing settlement terms into a signed settlement agreement. The pre-mediation meeting should conclude with time for SRPs to ask questions.
Another recommendation for handling consumer mediations with SRPs is to conduct the pre-mediation meeting on Zoom. The mediator should provide the Zoom link and admit one side at a time into the Zoom meeting, inquiring whether each SRP wants to be in a joint session or in a separate breakout room. Often SRPs are very appreciative of not being in a joint session with the other side. Separate breakout rooms necessitate that the mediator set up the breakout rooms before admitting the parties. It also means that the mediator may need to provide the same information in two breakout rooms, although it is relatively easy to get a mediation date from both sides by going between the two breakout rooms.
An effective tool to be discussed at the pre-mediation meeting is whether the SRPs would like an outline detailing what their pre-mediation statement should cover. The form can easily be sent as a Word document via email to the parties. A sample form is included below.
PRE-MEDIATION STATEMENTS – SUGGESTED FORMAT
Notice to the parties: A pre-mediation statement that follows the outline below will help me understand the issues to discuss at your mediation. The mediation statement should be a few pages. I do not recommend a statement that is more than 5 to 7 pages. Please attach any important documents separately. If you have large documents, it is best to highlight the important parts that you want me to read.
Start your mediation statement by listing:
Case number: __________________
Case name: __________________
Mediation date: ________________
Parties’ names: ________________
Begin writing your mediation statement by following the outline below:
Section I: Case Overview
- Type of case. For example: breach of contract or lemon law case.
- Insert the names of parties, including those with decision-making authority.
- Statement of the key issues.
Section II: Facts of Case
- Explain what happened. Example: In a breach of contract case, describe the breached terms.
Section III: Litigation Status
- What is the status of the case? Describe when you filed the case and state if the other side has received any documents.
Section IV: Legal Issues
- Describe the legal issues. Include case law or statutes, if known.
Section V: Settlement Negotiations
- Provide a summary of any settlement discussions, including the parties' last positions.
- Describe the terms you want included in a settlement agreement.
There are pros and cons to the sharing of pre-mediation statements. Sharing the pre-mediation statement is good in the business world when parties need a good working relationship. Sharing may be positive in a scenario where both sides have already communicated with each other, the parties agree on the relevant contract or other documents that are being relied upon, and there are no relevant documents that the other side has not seen. Sharing briefs allows the parties to cover a lot of the initial territory regarding the background of the dispute and what has happened from each party’s perspective, and certainly can advance the mediation significantly.
Sharing briefs is not always a good idea, however. For example, it is not recommended to share briefs where the briefs will be inflammatory or where one side has little positive to say about the other party; it is simply better to have confidential briefs if the parties seem contentious. There is also an option of hybrid briefing where the parties share the agreed upon information, for example, the contract and allegedly breached terms. The parties can then send confidential pre-mediation statements outlining the chronology of events and communications that support their position.
There is also a skill set in dealing with SRPs. At the pre-mediation conference, try to set up the process as a friendly one and explain that the parties are not in a court of law and that no one is on a witness stand. The mediator can encourage the parties to call the mediator by his or her first name and to feel free to share the story of what they believe really happened regarding the issue in question. It is surprising what one can learn from the parties when you break down the psychological barriers associated with being in a formal setting, especially with individuals who are not familiar with the legal system and may feel that they need to be very careful with what they say.
Other recommendations to consider in a pre-mediation conference are setting up a staggered start time for each side, asking the parties to tell you their weaknesses, imposing strict timelines, and sending reminders of key deadlines. A pre-mediation huddle with each side is effective in certain cases to clarify issues or to learn who the parties with authority are within their group. Importantly, panelists must always inform SRPs that the mediator cannot offer legal advice. It is also helpful to be creative and fashion a resolution based on terms that do not entail money. Do not underestimate the power of an apology, the writing of an article to be published in a local paper or trading a pink slip when a party lacks funds for a settlement. You can offer a cash discount for payment in full or include confidentiality and non-disparagement clauses as settlement terms.
As a frequent court mediator, one lesson learned is that patience is required when dealing with SRPs. SRPs need to be heard; being listened to and perceiving empathy go a long way in helping parties resolve their disputes. It is the job of ADR professionals to listen to the stories and facilitate communication where the parties have lost the ability to resolve their differences directly.
Consumer mediators may find that it is their professional duty to offer a process whereby everyday citizens have a forum to redress their grievances. We know that many of these matters will involve SRPs, so we should be prepared to set up the mediations efficiently, just as we would have a “to go” bag prepared in case of an emergency. Providing streamlined procedures, including a format for SRPs to provide their pre-mediation statement, helps both the mediator and the SRP to resolve disputes effectively.
About the Author
Lori Sanford, Esq., MBA is on the following American Arbitration Association panels: Consumer Mediation Panel; California Lemon Law Mediation Panel; Fixed-Rate Mediation Panel for Claims $100,000 and Under; and Consumer and Commercial Arbitration panels. Lori has worked as a full-time neutral since 2009. She served for 15 years as the volunteer administrator of a court settlement program called the First Friday Voluntary Settlement Conference Program for the civil division of the Riverside County Superior Court, Palm Springs branch (2009-2024). Lori currently serves on the Riverside County Superior Court Mediation panel, Bench Bar Committee, and was the Past President (2022-2023) and Mediation Chair (2017-2024) of the Desert Bar Association. Lori can be reached via email at lori@lorisanfordlaw.com or you can visit her website at www.lorisanfordlaw.com.