Prepare for Mediation: The Checklists

There are numerous decisions to make as you work your way through a dispute. Whether you are a disputant or a lawyer, these Checklists will assist you to make conflict-resolution decisions objectively and in an organized manner. You may not need every Checklist for the dispute that you are dealing with. You will know which ones are applicable.

Date and Duration Checklist

Whether you or an assistant is scheduling the mediation, the questions addressed in this Checklist will assist in selecting an effective date and length for the mediation meeting.

Variables and Issues to Consider

• Duration

• • How many participants are involved?
  • Are there lawyers or interpreters who will be attending? Adjust the duration so that everyone can be heard, keeping in mind local traditions.
  • What is the normal or expected duration for the type of dispute that is being mediated? e.g. If commercial mediations in your jurisdiction are usually scheduled to start at 9:00 and end at 5:00, what reason is there to propose a variation in timing?
  • Given the type of dispute and the physical or emotional endurance of the participants, what is the maximum length that each meeting can be scheduled for?
• Now or in the Future
  • Will a delay in scheduling the meetings cause financial or emotional harm to a disputant?
  • Are you and the other disputants psychologically and emotionally ready to participate in a problem-solving process?
  • Is the level of escalation so high that time and other interventions are called for to de-escalate the conflict to a level that allows for collaborative problem-solving?
  • In the case of personal-injury matters, has the injury stabilized to allow for a fair assessment of damages?
  • Does the data that is needed to make decisions exist, and if not, what needs to happen before it is available?
• Travel
  • Would pre- or post-weekend meetings better accommodate travel and cost-related issues for those who are traveling in to the meeting?
  • What start time will work best for those who must travel?
  • Might an entire day or series of successive days be set aside for the preliminary conferences and the mediation meeting to minimize travel and its associated costs?
• Other obligations
  • Are there other responsibilities, such as child care or elder care, that need to be worked with, so that the participants do not become anxious or distracted at key points during the meeting?
• Time of day
  Given the context of the dispute, what time will
  • avoid sugar lows,
  • take into account natural body rhythms, and
  • be conducive for work?
• Deadlines
  • Is there a deadline? Do you need to reach a decision by a specified date?
  • What are the consequences if matters are left unresolved?
  • Is it realistic to expect that all the issues can be resolved in one meeting?
  • If not, how many do you think will be called for?
  • How much time between meetings makes sense?

Interests and Objectives Checklist

Use this Checklist to gain insight into what is motivating you, to make your best guess about what is motivating others who are involved in the dispute, and to brainstorm creative ways to meet all your objectives. Key Questions:

• Your Objectives
  • What are your objectives?
  • Rank them in order of importance.
  • Distinguish between essential and “wish list” objectives.
• Other Objectives
  • What do you think the other objectives are concerning this dispute?
  • Rank them in order of importance.
  • Distinguish between essential and “wish list” objectives.
• Identical
  • What objectives do you seem to have in common?
• Complementary
  • Which objectives appear to be independent of each other?
• Incompatible
  • Which objectives appear to be in conflict?
  • In what creative ways could these be overcome?
• Hunches
  • How can you check out your hunches about the other’s objectives?
    • What does that other disputant possess that you could benefit from?
    • How might a trade work?
• Trades
  • What do you have that you believe the other disputant wants or could benefit from?
• Timing
  • Can the timing of events be structured to meet both your objectives and those of the other disputant?
• Laws
  • How can laws and rules, such as income tax, be applied for mutual gain?

Data and Information Checklist

You need information and data to make good decisions. This Checklist helps you identify what you require. As enduring outcomes are more likely when interests and objectives are applied to data and information, combine this Checklist with the “Interests and Objectives Checklist” (above).

• What are the facts?
  • Gather and review witness statements.
  • Obtain and review the accident report or other objective descriptions of the events.
  • If this is a contractual dispute, obtain the contract and any addendums to it.
  • Gather the documents that you believe show that the contract was broken.
• Why did it happen?
  • What is the disputant’s explanation for why it happened?
  • What documents are available to support this explanation?
  • Look for assumptions in the explanation, then check them out and gather documents supporting what is uncovered.
  • What other explanation for the event do the documents and data suggest?
• How do experts explain what took place?
  • Obtain expert reports.
  • If the expert reports provide opposing opinions, review the assumptions on which the opinions are based.
  • Check these out.
• What are the consequences of the event?
  • If there are medical consequences, gather medical reports that substantiate the injury.
  • Gather receipts for any financial consequences, such as medication, repairs, chiropractor fees, long-distance charges, and transportation.
  • When receipts are not available, record data such as the mileage to and from the physiotherapist’s office and the number and dates of attendances.
• What do experts have to say about the likelihood of full recovery and the degree of loss?
  • Obtain medical reports.
  • Obtain engineering reports.
• What will it cost to repair, rebuild, or compensate?
  • Obtain detailed estimates.
  • If loss of income is claimed, gather proof of income before the event.
  • If a career change is anticipated, gather information about the cost and availability of training for or transition to the proposed new career.
• What expert reports are called for to quantify amounts, such as the value of a company, the value of property, and so forth?
  • Order financial statements.
  • Order a property appraisal.
  • Order an actuarial report.

The Agreement to Mediate

In some places and for some disputes there are laws that govern your mediation. They may even protect the confidentiality of the negotiations at the mediation. When this is not the case, you need an Agreement to Mediate. This Checklist helps you to select the terms of the Agreement to Mediate.

• Identification of the disputants
  • Each disputant is named.
• Appointment of the mediator
  • The disputants appoint XY as the mediator(s).
  • The mediator accepts the appointment.
• Decision to mediate the dispute
  • The disputants agree to mediate a specified dispute.
• Generally
  • The disputants are encouraged to consult their lawyers.
  • The mediation process is described, together with a statement of whether separate meetings, or caucuses, will be utilized.
  • The date and location of the mediation meeting as well as the date and location of the preliminary conferencemay be recorded.
  • A statement that the mediator has discussed the suitability of the mediation process in relation to other dispute-resolution processes available to the disputants.
• Preliminary conference
  • The purposes for which a preliminary conference may be held.
  • A statement about whether the mediator has the authority to require a preliminary conference.
  • A statement describing who attends the preliminary conference.
  • A description of the preliminary-conference process, such as whether there will be one or a series of pre-mediation meetings.
• Principles of negotiation
  • An agreement to disclose and exchange, or not to disclose and exchange, all relevant documents, reports, and information in advance of, or at, the joint mediation meeting.
  • An agreement that the disputants will comply with reasonable requests from the mediator.
  • A commitment by the disputants to negotiate in good faith, to make a serious attempt to settle the dispute, or to behave in a bona fide manner.
  • Provisions requiring the preparation and delivery of a mediation summary or a statement of facts and issues by the participants in advance of the mediation.
• Mediator’s connection to the dispute
  • A statement that the mediator has no vested interest in the outcome.
  • A statement that the mediator is impartial.
  • A statement that the mediator is neutral.
  • A statement that the mediator does not have a conflict of interest, or alternatively, a statement explaining previous relationships that the mediator may have had, or if the mediator is a lawyer, that members of the mediator’s firm may have had with a disputant.
  • In the event that the mediator or the mediator’s firm may have had a previous relationship with a disputant, an acknowledgement of that relationship by the disputants and a statement that they are willing to have the mediator conduct the mediation.
• What the Mediator will do
  • A statement that the mediator will assist the disputants to communicate and negotiate as effectively as possible with the goal of reaching a settlement of the matters in dispute.
  • An agreement that the mediator will, or will not, prepare a memorandum of the agreement reached by the disputants.
• If the mediator is a lawyer, what the lawyer-mediator may do
  • A statement that the mediator is not acting as a lawyer, is not representing any disputant, and will not provide legal advice.
  • An explanation of the circumstances in which the mediator will prepare legal documents or prepare and process court documents.
  • A statement that neither the mediator nor a member of the mediator’s law firm will act as legal counsel for, or against, any person where to do so would require the lawyer to disclose or make use of confidential information gained as a result of the mediation.
  • An absolute or time-limited prohibition against the mediator and the mediator’s law firm acting for any disputant against the other disputants in the mediation.
• What the mediator will not do
  • A statement that the mediator will not, or will in specified situations, make decisions for the disputants.
  • A statement that the mediator will not tell the disputants what to do.
  • A statement that the mediator will not disclose mediation communications to non-participants.
• Fees
  • If there are fees for the mediation, a statement of the fee and how the fee, disbursements, and taxes will be shared among the disputants, together with the agreed terms of payment.
  • If there are fees for the mediation, a statement giving the fee for the cancellation or the adjournment of mediation meetings and who is responsible for where the mediator is providing “for fee” mediation services through a mediation service but is not employed by that service, a statement that the mediator is an independent contractor or consultant and not an employee of the mediation service.
• Disputes over fees
  • The process that will be used if there is a dispute over the mediation invoice.
• Experts, interpreters, and others’ roles and remuneration
  • Whether the mediator may retain the services of experts, or others, and for what purpose, as well as an agreement about payment for these services.
  • Whether there is a need for an interpreter and an agreement about the payment of the interpreter’s fees.
• Confidential, without prejudice and non-compellable
  • A statement that mediation communications are confidential. Communications that are part of the mediation and documents that are prepared for the mediation may not be revealed to persons who were not present at the mediation.
  • A statement defining mediation to include the preliminary conferences so that these communications are confidential.
  • A statement that the mediator may, or may not, treat private communications with one party as confidential from the other disputant.
  • A statement that discussions in mediation are without prejudice. No admissions or settlement proposal made as part of the mediation may be disclosed.
  • A statement that the mediator and the mediator’s notes are non-compellable by a court or tribunal.
• Limitations to confidentiality
  • Rules of disclosure in the litigation process, statutory provisions, an order of the court, or the unanimous consent of the disputants may require or permit the disclosure of documents prepared for the mediation or communications arising in the mediation.
  • Disputant communications with legal counsel are not prohibited.
  • The mediator may reveal mediation communications to each disputant’s lawyer.
  • Consent to the use of non-identifying details about the mediation for research, educational, or evaluation purposes.
  • Where the mediation is over a complaint to a public body, an agreement about the manner in which the public body may publish the results of the mediation.
  • Where the mediation is over a complaint to a public body, a statement describing the use that the public body may, or may not, make of any agreement and whether information about the mediation may be referred to in subsequent complaints about the wrongdoer to the public body.
  • An agreement about how press releases will be dealt with during the mediation.
  • An agreement to make – or not to make – a transcript or other record of the mediation.
• Limitations to mediator liability and indemnification
  • A statement that the mediator does not promise results; that the disputants may agree to a compromise that is less than what might have been achieved in court or through some other dispute resolution process.
  • A complete or limited release of the mediator from liability.
  • Indemnification of the mediator for claims and legal costs arising out of the mediation.
• The voluntary nature of the mediation
  • A statement that the agreements reached at the mediation are voluntary.
  • Subject to laws or contracts requiring mandatory participation in mediation, a statement that continued participation in the mediation is voluntary.
• Whether the agreement reached during mediation is binding
  • A statement describing the legally binding nature of any agreement reached at the mediation.
  • When a disputant participates through a representative, a statement that the agreement reached by the participants is binding, or is not binding, until it is ratified by the disputant.
  • A statement indicating whether any agreement must be written and signed by all disputants before it is binding.
• Authority and obligations of representatives
  • When a disputant participates in the mediation through a representative, a declaration that the representative has, or does not have, the authority to negotiate a final settlement.
  • When a disputant participates in the mediation through a representative who does not have the authority to negotiate a final settlement of the dispute, a commitment that the representative will use her best efforts to obtain ratification of the agreement.
• Impact of mediation on legal proceedings
  • If the matter being mediated is the subject of litigation, an agreement about what may, or may not, occur within the litigation until the mediation concludes.
  • If the matter being mediated is before a court or a tribunal, a statement that the disputants waive their right to move for a dismissal of the prosecution of the matter based upon a delay of the prosecution attributable to the mediation.
• Conclusion of mediation
  • The right of the mediator to end the mediation, and the procedure to do so.
  • Subject to statutory provisions requiring bona fide participation in mediation, the right of any disputant to withdraw from the mediation and the procedure to do so.
• After the mediation
  • A statement that the disputants will carry out the provisions of an agreement reached at mediation.
  • The mediator’s involvement, should the mediation be followed by another dispute-resolution process.
  • If the implementation of the agreement will be monitored, a statement about who will do the monitoring and how it will be conducted.
  • If the implementation of the agreement will be monitored, a statement describing the consequences of a failure to carry out the terms of the agreement.
• Appended to the Agreement to Mediate
  • When someone who is not a disputant or a lawyer attends the mediation or when Rules of Procedure are called for:
    • An agreement to keep confidential communications and documents arising in the mediation by a person who attends some or all of the mediation but who is neither a disputant, legal counsel for a disputant, nor a mediator.
  • Rules of Procedure.

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Deborah Lynn Zutter practices Collaborative Divorce and mediation in Vancouver. She is a conflict-resolution trainer and frequent public speaker who has taught mediation at the University of British Columbia, Faculty of Law. She is also the author of Preparing for Mediation: A Dispute Resolution Guide, 2nd ed.