Using Pre-Mediation Questionnaires in Litigated Cases

Prior to the mediation, I circulate to the lawyers a confidential pre-mediation questionnaire modeled on a form developed by Richard Sher, a well-known St. Louis mediator.  This form helps the lawyer, the client, and me get ready for the mediation with a structured analysis of the case.

It asks the lawyers to disclose the status of the case in the litigation process and whether any dispositive motions are pending. It asks about the status of discovery and how much more discovery the parties need to do.  It asks about the facts of the case, the claims and defenses of the parties, the disputed issues of liability or damages, the amount and characterization of damages sought, the attorneys’ fees incurred to date, and the expected fees the client will incur getting the case to trial.  

Next, it asks about the history of negotiations and why that lawyer believes the negotiations have failed so far.   It then asks for a candid assessment of the “soft spots” in the claims or defenses and whether the client has sufficient information to form a realistic assessment of the legal case or the settlement options.  If not, the questionnaire asks the lawyer for what additional information the client needs.  

It also asks about settlement authority, who will be attending the mediation, and for any additional information the lawyer thinks may be helpful in settling the case.

Do you use a pre-mediation questionnaire?  What additional information does it seek?