By: Donald L Swanson
“When writing a mediation statement . . . lawyers fly blind. Large providers . . . offer little substantive guidance . . . Mediators themselves often fail to give explicit instructions . . . Most [law] schools rarely, if ever, teach budding lawyers about this niche genre of legal writing.”
Brian Farkas* and Donna Erez Navot**, in “First Impressions: Drafting Effective Mediation Statements,” 22 Lewis & Clark Law Review 158, 183 (2018).
The study quoted above is an excellent source of information and recommendation for preparing a pre-mediation statement. Everyone who participates in mediation should read it.
I’ll try to provide a summary.
The study began with an online survey of 180 experienced, mediation practitioners and scholars. The following are raw data results from that survey.
On Requiring Pre-mediation Statements: 66.67% “always” require pre-mediation statements, 14.44% “usually” require them, and only 3.33% “rarely” or “never” require them, with the remainder requiring them about half the time.
On Formatting: 62.22% of respondents prefer pre-mediation statements to be formatted like a letter, only 5.56% prefer such statements to be formatted like a legal brief, and 32.22% want a format with specific topics/questions.
On Brevity: 46.67% prefer a maximum page count of ten single-spaced pages; 33.33% want only five single-spaced pages, and 4.44% would allow fifteen pages. The remainder set limitations depending on the case.
On Tone: 94.44% would like the tone to be either “significantly” or “slighty” less formal than a legal brief. A lesser formality means removing unnecessary citations, jargon, and Latin phrases. It also means being more accommodating and less combative—after all, the goal is to reach a settlement (not fight) with the opposition.
On Use of Pleadings: 42.22% want copies of the pleadings attached to the pre-mediation Statement, 8.89% do not, and about half say it depends on the case. Strong disagreement exists between those who believe pleadings are useful and those who do not.
On Non-Pleadings Exhibits: 82.22% “always” or “usually” want to see “relevant exhibits” attached to the pre-mediation statement, such as a contract that is central to the dispute. 3.33% of respondents never want to see exhibits in advance, and the remainder say it depends on the case. Still, brevity is important—as is highlighting, in some way, the important part of a document that is provided.
On Discussing Settlement Position: 63.33%, ask advocates to include a specific statement regarding their clients’ settlement position in the pre-mediation statement. 20% prefer to see settlement ranges—that is, a range as to acceptable dollars to pay or receive. Only 7.78% prefer that no settlement position or range is included. And several commented that they encourage parties to submit such information to the mediator in confidence.
On Providing Legal Argument: 58.89% want to see legal citations that the parties believe have a “dispositive effect” on the claims. 31.11% want legal citations to “all relevant legal authority that could affect the outcome of the dispute.” 10% do not want to see any legal citations in a pre-mediation statement or only as warranted in a particular case.
The study offers “best practices” for preparing pre-mediation statements. The authors arrive at these practices by combining their survey results with, (i) interview information from leading mediators, (ii) existing literature on pre-mediation statements, and (iii) input from other mediation professionals.
Here are their “best practices” recommendations.
A. Issues to Consider Before Drafting
While mediation can reduce legal costs by ending expensive litigation, not all clients can afford robust mediation statements. Advocates should avoid incurring costs, for preparation of a pre-mediation statement, that are disproportionate to the amount of money in dispute and should advise their clients of all costs of the mediation process.
–Clarifying Expectations on Format and Content
A pre-session conference call among the mediator and attorneys for the parties can be helpful for many purposes. Among the subjects to discuss are expectations for pre-mediation statements, including the format and length and the inclusion of exhibits and legal authorities and arguments and whether statements are to be shared among the parties. This will remove uncertainty from the drafting process and avoid disparate action—e.g., where one party writes a paragraph and the other writes a novel.
–Confidentiality vs. Mutual Exchange
Should the parties exchange their pre-mediation statements with one another—or only provide it to the mediator? The study prefers sharing statements among all mediation participants. Here’s why:
Providing it only to the mediator presents both a missed opportunity (to better understand and to persuade) and a danger (being unprepared to face new arguments in the mediation);
Confidential statements can heighten suspicion and distrust among the parties; and
If certain information needs to be kept confidential, it can be kept out of the mediation statements and communicated to the mediator verbally.
The survey results described above provides a guide to the drafting process.
The pre-mediation statement is the beginning of a relationship between the party and party’s attorney with the mediator. The statement reveals, (i) whether the party is substantively prepared (it is not enough for an attorney to “just to show up”), and (ii) whether the party is prepared to negotiate (or has ulterior motives).
The pre-mediation statement also has an impact on mediation results. The statement enables a party to deliver their message directly to the opposing party, when mediation statements are shared, and to educate the mediator on their position.
D. Timing of Delivery
Attorneys should distribute their pre-mediation statements as early as possible prior to the session. Requirements in various courts range from at least 14 days before the session to seven days prior. This approach differs from a common litigation strategy that provides an opponent as little time as possible to respond—the difference is that litigation tries to win a case, while mediation tries to settle it.
E. Topics to Include in a Shared Pre-Mediation Statements
What should be included, and what should be omitted from a statement that is shared with the other side? Here are topics to include.
–Summary of Relevant Facts:
The bulk of the pre-mediation statement should tell the story of the case and summarize key facts. It should answer such questions as:
- Who are the parties (i.e., their businesses, locations, etc.)?
- What is the nature and length of the parties’ relationship?
- When did the dispute emerge and how was it discovered?
- What is the nature of the dispute?
- What has happened since the dispute was discovered (e.g., attempts to cure)?
- What damage has the dispute caused to each party (e.g., monetary, non-monetary, etc.)? And
- Is there an ongoing or future relationship between these parties?
A common mistake is going into too much detail, which can cause the mediator to lose sight of the forest through the trees. In other words, tell the story, but only the essential pieces. Clarification or exposition can be provided later, as needed.
The mediator must know the cast of characters. A “cast list” and description will help the mediator understand the situation better, especially when lots of people are involved.
–Procedural Time Line
Mediators want to know the basic procedural posture of the case—just the basics. The mediator will approach the case differently if the dispute is new v. long-standing, if discovery is in early stages v. nearly complete, or if trial is far off v. ready to begin. A timeline of significant procedural events will be helpful.
–Critical Legal Issues
When a disputed question of law is the heart of a dispute, the mediator needs background on the legal issue. The mediator does NOT need, however, a briefing on every single affirmative defense or an explanation of each cause of action. Lawyers need to be disciplined in emphasizing only those legal issues that are likely to be dispositive.
–History of Settlement Discussions
A mediator must understand any prior attempts at resolution. So, the pre-mediation statement should say:
- Whether prior settlement negotiations occurred;
- Whether prior mediations or court-sponsored settlement discussions occurred;
- The nature of any such discussions (e.g., partial settlements, offers made and rejected, etc.); and
- The last settlement position of each party.
However, the study advises against including current negotiating positions in statements shared with the other side, because an offer that’s too low could spook the other side into backing out of a mediation and can forestall a better offer than the one already in writing.
F. Handling Confidential Information
Confidential information should be shared with the mediator in confidence. And the preference is to do so orally, not in writing. Here are some examples of such confidential information:
Current negotiating positions;
Weaknesses of your own case and strengths of the opponent’s case;
Underlying business or personal interests (e.g., a sale of the business is in process); and
Unusual client or personal dynamics (e.g., division within a corporate client on how to proceed).
Summary of Study Recommendations
Most mediation statements should:
be between five and ten pages long;
cite only the legal authorities that would be dispositive to the outcome of the case;
adopt a conversational, rather than adversarial, tone; and
be shared among the parties and not shared only with the mediator.
Additionally, each party’s attorney should have separate, confidential communications (the preference is to do so orally, not in writing) with the mediator to address confidential matters.
If litigators follow the study’s recommendations, its authors contend, “they are more likely to put their mediator—and their clients—in a position to succeed.”
Here’s a huge shout-out to Brian Farkas and Donna Erez Navot for their research and analysis on this important subject and for their practical recommendations on “best practices”!
* Brian Farkas is Adjunct Professor of Law in the Kukin Program for Conflict Resolution at Cardozo School of Law, Yeshiva University.
** Donna Erez Navot serves in the Cardozo School of Law, at Yeshiva University, as (i) Assistant Director, Kukin Program for Conflict Resolution, and (ii) Director, Mediation Clinic, Visiting Assistant Clinical Professor.
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