The following issues should be addressed:

  1. Parties who must be represented at the mediation for productive negotiations to occur.
  2. Participants on behalf of each party.  It is essential that everyone whose decision is necessary for settlement participate.  Personal attendance is strongly preferred, although telephone participation can be accommodated.
  3. Information to be exchanged in advance of the mediation session to assist all parties in making realistic settlement decisions during the mediation.
  4. Briefs.  Submission of briefs is important.  Briefs should not exceed ten typed pages (plus exhibits).  If more pages are required, please notify my assistant and opposing counsel to agree upon an appropriate length.  The briefs should be received by me at least three business days in advance of the mediation.  Submission by fax or as a PDF attachment to an e-mail is acceptable.  I encourage the parties also to exchange briefs with one another.  Any particularly confidential information can be provided to me under separate cover.


Depending upon the nature and dynamics of the case, the mediation may or may not begin with a joint session attended by all participants. Please come prepared to summarize your position during this joint session, if we decide that such a session will be helpful. You may utilize whatsoever presentation you believe most effective, including charts, audio-visual, and oral presentations by counsel and principals. Bear in mind that the goal is to not prove a case, but to clarify your views sufficiently for decision-makers among the parties while educating the mediator.

The joint session is followed by private confidential caucuses between the mediator and each party. In caucus, you can discuss information which may assist in working towards a resolution, but which you would prefer not to disclose in direct negotiations. The mediator will play devil’s advocate to help all parties gain the most balanced possible evaluation of the matter. Finally, the caucuses provide an opportunity to assess realistic options for resolution, without endangering any party’s negotiating posture.

Caucusing will generally continue until an option has been developed which all sides feel is acceptable. At that point, the mediator will summarize the terms of the settlement/agreement. You may then proceed to draft and execute a memorandum stating the key terms.


If a resolution is not reached in the initial mediation session, the parties may elect to authorize follow-up. This can consist of telephone caucusing, further investigation or information exchange among the parties, and/or an additional mediation session.


All statements made in the course of joint sessions are privileged settlement discussions. All statements made, or information disclosed to the mediator in private caucus, is privileged and that disclosure cannot be compelled under any circumstances. All records, reports, or other documents prepared by the mediator, or submitted to the mediator in confidence by any party, are confidential and disclosure cannot be compelled under any circumstances.


My mediation rates are based upon the initial expected length of the mediation (e.g. half day or full day) and will be stated as specifically related this mediation in the engagement letter which accompanies these procedures. There is no additional charge for limited follow up phone calls following the mediation session.


My cancellation policy is as follows: One-half of the mediation fee is deemed earned for cancellations up to one week before the scheduled mediation date. The entire amount of the mediation fee is deemed earned for cancellations within one week of the mediation date.


Because of the size and longevity of the firm in which I am a partner, Hill, Farrer & Burrill LLP, it often occurs that one of more of the parties have had some contact with the firm in the past or currently, either as a potentially “adverse” party or a potentially “interested” party or client. I would have no personal knowledge of the vast majority of these matters in any event, which thus should be irrelevant to his ability to act as a neutral. Therefore, unless requested by a party to do a firm-wide conflicts check, I will limit my conflicts check and disclosures only to those advocative matters involving any mediation party in which I was previously the supervising attorney or attorney-in-charge. Any past professional acquaintance with counsel or prior matters I have mediated for any counsel or parties will not be included in any disclosure being made; I will rely on the parties and counsel to advise one another of this, if appropriate.

Finally, all parties should be aware that the fact of my service as a neutral in this matter will not necessarily be logged into the firm’s conflict register and, by agreeing to use my services as mediator, each party understands that this creates no attorney-client relationship and further agrees that this shall not preclude or inhibit in any way my firm’s present or future ability to provide representation in matters other than the instant dispute in which any mediation party is “interested” or “adverse”. To the extent that the firm works on any matter for or against any party to this mediation, I shall not disclose any confidential information I obtain as a mediator in the course of this proceeding.

HFB 1778142.1 G3502002

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