One of the great benefits of mediation is its lack of structure and rules. Todd maximizes this benefit by taking a very flexible and often creative approach to mediation. From convening through executing the settlement agreement, Todd works with the parties to ensure that the process meets with their expectations and continually moves the parties forward towards resolution.

Convening is the first step and a vital step of mediation. The focus of convening is to devise a process that maximizes the opportunities for success and ensures that all of the participants understand the process and have the same expectations. In some cases, Todd will contact one party on behalf of another to introduce the prospect of mediation. The ultimate goal of convening is the willingness of the parties to come to the table.

While his approach depends on the specific circumstances of each case Todd values an opening session, which provides the parties a safe environment to fully air their respective positions. Counsel should be prepared to present a summary of their case through any means they deem most effective including audio-visual and oral presentations by counsel and/or the parties.

At the conclusion of the joint session, the parties will separate and have the opportunity to meet with Todd privately. Through these confidential private caucuses Todd acts primarily as a facilitator, attempting to establish the state of the case, goals in litigation and the critical issues in dispute. When appropriate, Todd will take a more evaluative approach, using his extensive experience as an advocate to assist the parties in evaluating the possible results at trial, the costs of obtaining each result and the value of settlement. This can include discussion of the factual and legal issues, jury composition, jury verdicts, expert witnesses and credibility. Ultimately, the objective is for the parties to resolve their dispute, and to do so on their own terms.

Cases that are not resolved during an initial mediation session can almost always be resolved shortly thereafter through continued follow-up with the parties. Todd has been described as being “tenacious” in his approach to follow-up. With the permission of counsel, Todd can continue settlement negotiations telephonically to resolution, or work with the parties to re-convene the mediation.

Briefs are strongly encouraged. While there is no required format, at a minimum, briefs should include a recitation of facts, issues, damages, a discussion of claims/defenses, a brief procedural history and any settlement discussions to date. Any other relevant information or documents are welcomed. Briefs should typically not exceed ten pages (excluding exhibits) and arrive at least two business days prior to a scheduled date of mediation. Briefs intended to be confidential (not served on opposing party) should be clearly marked as such.


©2003 Todd A. Smith ESQ. All Rights Reserved.