For Lawyers

What should be in the Mediation Statement?

No particular format is necessary. A two-page letter is sufficient in some cases; a binder with exhibits is necessary in others. The mediation statement accompanied by important documents should explain:

1. The nature of the dispute.
2. Key facts, and whether the parties agree or disagree.
3. Controlling law.
4. The status of litigation and negotiations.
5. The parties’ current settlement positions.
6. Anything else that will help me understand the dispute and its dynamics.

Although a thoughtful mediation statement is important, a meticulously polished statement is not. It isn’t a court filing, so there’s no need to worry about annoying the judge with your syntax.

Is it better to keep Mediation Statements confidential, or exchange them?

My standard mediation agreement allows the parties to decide whether to exchange submissions. I prefer that parties exchange mediation statements so that each knows what the other has told me about the dispute. That allows us to clear up misunderstandings at the outset and focus the discussion, even in cases that have been heavily litigated. 

Most attorneys would rather submit confidential mediation statements. The usual justifications are that it allows them to be more candid about their case, or to open up about their settlement positions. But rarely does a confidential mediation statement contain more than a sentence or two that could be damaging if revealed to the other side. 

You can always send me an email or call me to discuss the sensitive topics you don’t want to share with the other side.

How should I prepare for the Mediation?

• Prepare as if the mediation was a pretrial. Know your case. Be ready to educate the mediator and the other side on the facts and law. By the same token, be ready to objectively listen to your opponent’s perspective.
• Prepare your client. If inexperienced, make sure your client knows that mediation is a safe and privileged setting. Obtain your client’s commitment to listen and be civil, even to the other side. 
• Arrive with full settlement authority. Presumably your client or a representative with ultimate authority will be with you. Give them your candid settlement analysis well before the mediation. Agree on your opening position and strategy.
• Exchange critical information with your opponent in advance. Don’t expect your opponent to react favorably to a damages analysis received on the day of mediation, or to fold based on previously undisclosed evidence. Surprises will be viewed as gamesmanship, slowing things down or stopping the process cold. 

Should I make an opening presentation?

Positional opening statements have fallen out of favor. They typically do little to educate the other side and can set discussions back if strident or distorted. I don’t ask the parties to make openings, but I won’t stop a party from making a presentation if the other parties are willing to listen. 

An opening can be effective if it is a fair presentation without inflammatory rhetoric.  It should tell the opponent why you’ll win based on evidence and law, not based on accusations or characterizations. The opponent is the primary audience for an opening, so the objective should be to persuade rather than antagonize. 

Let me know beforehand if you want to make a presentation. Opening remarks merely signaling a willingness to engage in good faith negotiations are always welcome.