The Circuit Mediation Office attempts to identify lead counsel (the attorneys on whose judgment the clients rely when making decisions) for all parties when scheduling conferences. This is not always possible, so addressees are asked to advise the Circuit Mediation Office in advance of the conference when other counsel, or parties, should be involved.

Mediation discussions are most effective when counsel are thoroughly familiar with the issues of the case and have considered how the lower court’s decision may have affected litigation strategy. Prior to the conference, counsel should discuss with their client: 1) realistic goals and expectations for the mediation; 2) a cost-benefit analysis of the risks and costs of further litigation versus settlement, including attorney fee issues; 3) the client’s interests and goals underlying the litigation; 4) ways, both through and apart from continued litigation, those goals and interests might be addressed; and 5) to the extent that the goals and interests of the other parties are known, possible ways that those might be accommodated. Counsel should encourage their client to be prepared to participate fully in the settlement process with a flexible and open-minded attitude. Counsel are encouraged to be creative in generating new settlement options.

A confidential settlement position paper is not required.