Mediating Disputes Between Chinese and American Businesses: The Mediator’s Checklist

Retainer Issues
  • Disclosure of Background Information
  • Substantive Expertise Items
  • Explanation of Mediation Style
  • Impartiality and Conflicts of Interest Check
  • Fee Structure and Billing
  • Mediator Liability and Immunity
  • Mediation and Retainer Agreement

Preliminary Discussions

  • Site and Accommodations
  • Schedule
  • Confidentiality Agreement
  • Mediator’s Style
  • Client Representatives and Participants
  • Stay of Discovery and Pending Action
  • Applicability of Two-Track Approach
  • Discovery for Mediation Sessions (if any)
  • Pre-Mediation Submissions
  • Roles of Insurers
  • Status of Settlement Discussions

Joint Session

Mediator’s Opening Remarks

  • Mediator’s Role and Impartiality
  • Goal of Resolution
  • Non-Binding, Voluntary Nature of Process
  • Confidentiality Protections and Exceptions
  • Mediator’s Style and Process Approach
  • Participation of Parties and Role of Counsel
  • Order of Presentations
  • Purpose of Joint Sessions/Caucuses
  • Time Frames and Progress Reports
  • Basic Ground Rules
  • Conclusion and Questions

Parties’ Opening Statements

Identifying and Organizing Issues

Private Caucuses

  • Repeat Procedure of Identifying Sensitive Information Not to be Revealed to Other Party

Resolving Issues and Mediators’ Techniques

  • Reality Testing Questions
  • General to Specific
  • “Agree to Disagree”
  • BATNA and WATNA options
  • Apply Accepted Standards in Field
  • Brainstorming Session
  • Decision Trees
  • Expanding Resources
  • Apology Option
  • Conditional Offer
  • One-Text Approach
  • Two-Step Offer
  • Breakout Meetings
  • Expert Opinion
  • Evaluation
  • Mediator’s Settlement Proposal

Memorandum of Understanding

  • Execution of Memo before Adjournment
  • Drafting Responsibility

Termination or Adjournment Without Settlement

  • Identify Follow-Up Issues
  • Rescheduling Possibilities

Other ADR Processes If Mediation Unsuccessful

  • Mediator’s Role in Process – Design, Participation

Steps After Process

  • Returning Documents/Retaining Records
  • Court-Appointed Mediator’s Reports
  • Inform All Parties If Subpoenae
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