This process helps ensure the mediator and counsel are on the same page and allows the mediator to come into the session fully up to speed on the issues. The mediator and counsel can also discuss opening statements and other mediation logistics, and counsel can relate other information that may not have been included in the position statement. During the call, the mediator can ask questions regarding the materials furnished and request additional information.
They should be held after the mediator has had an opportunity to review the position statements. Private, pre-mediation conference calls between the mediator and each party are invaluable. Such a move shows good faith and helps get the mediation off to a good start. Finally, plaintiff’s counsel should consider making an opening demand that is somewhat discounted from plaintiff’s absolute best day in court. This is essential because damage calculations can be very complicated in oil and gas cases, and valuable time may be wasted if a complex damage analysis is presented for the first time at mediation.
Plaintiff’s counsel should also send a written demand to defense counsel prior to the mediation that not only outlines the strengths of the plaintiff’s case, but also includes a detailed explanation of the damage model and calculations. If necessary, enlist the mediator’s assistance in obtaining needed documents. Well before the mediation, both parties should make sure that they have all the key documents they need from their client and the opposing party in order to fully evaluate the issues, especially those relating to damages.
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In all cases, a good position statement will outline the basic facts, the causes of action, the damages sought, the status of the case (e.g., discovery completed, pending motions, trial settings), prior settlement negotiations and the party’s view of the settlement value of the case. Regardless of the extent of the mediator’s industry knowledge, every mediator will benefit from a thorough position statement.
For these reasons, it is helpful to select a mediator who has some familiarity with the industry. In addition, oil and gas litigation can involve very technical issues, not to mention complicated contracts and regulatory schemes.
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Many articles have been written about how to have a successful mediation, but there are specific considerations in oil and gas mediations that merit discussion, including mediator selection and preparation, documents and demand letters, pre-mediation conference calls, opening sessions and ongoing business considerations.Īs with many industries, the oil and gas world has a language all its own. Regardless of the players and the issues, oil and gas litigation is here to stay, and mediation will continue to be a valuable tool for resolving disputes, thus saving parties time and money. As the oil and gas industry continues to evolve, oil and gas companies will no doubt see new types of claims asserted against them.
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