The Value of the Pre-Mediation Conference

By Christina L. Scott, J.D.

Pre-mediation conferences can be a very effective tool to use in getting your cases settled. These types of conferences are permissible, unlike in litigation or arbitration where ex parte communication is not allowed. These conferences can take place with each side prior to the start of mediation or scheduled days in advance. Counsel should treat this conference as a “heads up” call to the mediator, not as an opportunity to advocate for your client’s position. The conversation with the mediator should be candid, honest, and centered around any barriers to settlement, other than the law and facts, that you anticipate or perceive in the case.

The pre-mediation conference should also be a conversation about case dynamics such as issues you are having with opposing counsel, your own client, and personality issues of clients that might need to be managed with special care. This information can greatly assist the mediator in knowing how to best approach each client. Information shared in these conferences is generally treated as confidential unless told otherwise.

If you have a divorce case that involves complex assets such as numerous real properties or financial accounts, trusts, or foreign currency, it is also very helpful to the mediator to have a preview of the assets at issue during the pre-mediation conference. One very time-consuming aspect of high asset mediation is the parties going back and forth for hours about what assets actually make up the marital estate. Parties can save time on mediation day by providing the mediator with any marital balance sheets or position statements, well in advance.

The success or failure of mediation never rests on one person because everyone at the mediation table has a part to play. Information shared in pre-mediation conferences can help the mediator do their job more effectively.