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Mr. Smith requests that briefs be submitted prior to any scheduled mediation because of the importance of his preparation to an efficient and productive mediation day. Mr. Smith also engages the parties in pre-mediation discussions to ensure that he has all of the information necessary to the conduct of a successful mediation.

Some mediators either fail to read briefs carefully, or do not request them because of a belief that the mediation is not about the law and the facts, but about getting the parties to agree. Mr. Smith believes, of course, that agreement is the end goal, but also understands that a lawsuit is involved and an understanding of the risks to all parties of going forward with the lawsuit is integral to reaching agreement. Such risks are generally best presented by the parties through briefing the factual and legal issues. Thus, Mr. Smith will not only read and analyze the briefs carefully, but will review any applicable law and invite the parties to submit copies of applicable cases and statutes that support their respective positions.

Additionally, Mr. Smith generally engages the parties in pre-mediation discussions to gain an understanding of issues relevant to the conduct of the mediation. These discussions often allow the parties to provide information that they may not deem appropriate for briefing. For example, one of these issues may be whether the parties see drawbacks to the parties meeting in a joint session. Indeed, in some circumstances, the interests of the parties are best served by eliminating any joint session prior to caucuses. In others, joint sessions should predominate, and caucuses should take a back seat. Mr. Smith recognizes that every case may require its own distinct approach. Mr. Smith consistently applies his belief that thorough preparation is vital to the conduct of a successful mediation.




2007 Smith Mediation. All rights reserved.