How and When to Use Admissible Evidence in the Mediation Context: Guidance for New Lawyers

Outline

1. Mediation vs. settlement conferences
   1. What makes mediation different than other settlement contexts
      1. Many states limit the use of information exchanged during the mediation process: examples
      2. Most mediators require total confidentiality
   2. Phases of mediation: fact-finding and exchange followed by active negotiations
   3. Focus here is on the fact-finding and exchange of information stage
2. Case evaluation and discovery
   1. Pre-suit investigation and evaluation: plaintiff vs. defense
   2. Pleadings
   3. Discovery plan
      1. Interrogatories: strengths and shortcomings
      2. Document requests
      3. Subpoenas
      4. Party depositions: when is best?
      5. Non-party depositions
   4. Informal discovery
      1. Public records/FOIA
      2. Witness interviews and statements
      3. Investigators: uses and abuses
      4. Subrosa?
3. Collecting and evaluating admissible evidence
   1. Records issues: authenticity vs. admissibility--why does it matter?
   2. Witnesses
      1. Personal knowledge requirements
      2. Hearsay problems
      3. Opinions: expert vs. non-expert
   3. Admissions: legal vs. factual
   4. Social media and video
4. Preparing for mediation
   1. Choice of mediator is crucial to success
   2. Retired judge: pros and cons
   3. The brief
      1. Confidential or not?
      2. Legal vs. factual arguments
   4. Too much vs. too little
   5. In person or remote
   6. Prior settlement efforts
5. Mediation
   1. Caucuses: the good, the bad, and the ugly
   2. Use of breakout rooms
   3. Who goes first and does it really matter?
   4. Playing your cards: Kenny Rogers

Benefits

The panel will review these and other issues:

• Why do attorneys fail to rely on admissible evidence in the negotiation setting?
• When should new attorneys start thinking about admissibility issues?
• What admissibility issues arise if evidence consists of social media and video?