Continued from Part 2.

Terms of engagement

After considering the above checklist (which will no doubt be supplemented to adapt to your case), it’s now time to negotiate the terms of engagement to mediate. Here are a few quick things to remember:

• Scheduling – Mediators who understand how to close deals are in high demand, meaning that getting a last minute case onto their calendar is challenging. Consider reserving a couple of dates with select mediators a year in advance with an understanding that those dates will be returned to the mediator with ample notice if not used. Take advantage of the administrator for the mediator who usually knows how to herd cats.

• Who will attend the mediation – When insurance is involved, particularly carriers from geographic distances outside your jurisdiction, do you need them at the table or will telephonic availability be acceptable? In a commercial setting, is the Chief Executive Officer attending or will a subordinate attend? Discuss the pros and cons with your adversary and make it work for them.

• Where will this mediation occur? – Generally speaking, a mediator is more effective in his or her neutral space. Conducting the session in a law office does work but doesn’t utilize all the skills a mediator needs to develop a proper settlement dynamic.

• Costs – In most cases, the cost of a successful mediation shared by all parties is miniscule compared to the value obtained in settlement. Don’t be penny wise and pound foolish. You get what you pay for, no matter the size of the dispute.

• Pre-mediation conference – In any case that is sizable, schedule a short call with the mediator in advance of the mediation to highlight the areas that might be an impediment.

• Agreements – Consider exchanging either a formal Settlement Agreement and Release or Memorandum of Understanding before the session. While there are some terms that are subject to negotiation and can be left out, at least the key terms can be handled without wasting precious time at the conclusion of the mediation.


We are hunters and gatherers. A form of entrapment is built into the civil justice system since it cannot handle our desire to eat all the cherries that are picked in the forest. As a result, we have asked mediators and others to assist in our efforts. Mediators are often misled and used as pawns when they are put into a case where the parties haven’t considered the intermediate steps outlined above. This has led to wasted resources and time, which is contrary to why mediation was placed into the system in the first place

Jeffrey Krivis has been recognized by the Daily Journal, the leading legal newspaper in California, as one of the 'top 20 mediators in the state,' and 'top 50 neutrals in the state,' (Daily Journal). Since 2004 he has been honored as one of the 'Super Lawyers' in California by Los Angeles Magazine and Law and Politics Media.