The Mediation Statement
A mediation statement should be concise and persuasive. On the first page, it should provide important case information (e.g., the trial date, the results or future date of any summary judgment motion, the status of pending discovery, etc.) lt should state the theme of the case, and explain the facts, supported with exhibits where helpful, and the governing law. The plaintiff should summarize the relief requested and how monetary damages are calculated.
Some attorneys prefer to send their statements only to the mediator, but in my experience, exchanging mediation statements promotes settlement. In mediation, parties must persuade each other, not the mediator, of the merits of their claims and defenses, and exchanging statements allows them to frame their position in the way best calculated to do this. Exchanging statements also allows counsel to prepare better – it minimizes surprises – and they may find there are things they agree on. Further, when counsel and parties have not seen the other side’s statement but are hearing the adversary’s position for the first time at the mediation, there is a tendency to think about responses instead of listening carefully to what is being said.
As a practical matter, in my experience, when mediation statements are not exchanged, what lawyers write privately to the mediator they almost always say to the other side during mediation.
Even when mediation statements are exchanged, if counsel believe it would be helpful, they may include short, confidential ex parte statements to the me relating, for instance, to obstacles to or options for settlement, weaknesses (legal, evidentiary and factual) in their case which they know the other party will bring out; and weaknesses in the opponent’s case (of which they are and are not aware). If the statements are not exchanged, the statements sent to the mediator should include the same confidential information.
Copyright, Richard S. Weil, January 2011