• Welcome
  • About
  • ADR
  • Blog
  • Contact

David Fitzsimons

It's Settled, Then.

How is a pre-mediation statement useful in mediation?

August 2, 2012 By David Leave a Comment

The pre-mediation statement rarely is a script for conduct for an effective mediation. And why is that? It gives the mediator all sorts of insight into the parties, their representatives, their level of sophistication (arrogance), their expectations from mediation, their attitude toward the other side and their investment, among other things, in the level and length of the conflict in which they have already been engaged. Often an effective pre-mediation process provides the mediator with a pretty good idea of areas of exploration (exploitation?) in mediation, but it is very important that the mediator stop himself or herself from leaping to conclusions or judgments.

Mediators are not judgmental. Lawyers are universally judgmental and… (discuss.)

The pre-mediation statement, if it focuses on the basics, provides a great tool for the willing advocate who needs help with their guidance of different clients. It is for:

  1. The client who needs what mediation provides but cannot admit it.
  2. The difficult or institutional client not culturally or structurally set up for cost-effective dispute resolution (dysfunctional corporate entities, most government entities, family dispute driven entities, for example.)
  3. The preparation of a pre-mediation statement provides the first (and perhaps last) real opportunity to focus the client, and the advocate, on the pluses and minuses of their case and…this is vital…with control over the outcome.
  4. Pre-Mediation provides the mediator his or her best opportunity to help the parties frame their dispute resolution process…and missing this chance to educate the value of the process cannot be risked.
Filed Under: Mediation Tagged With: ADR, mediation, pre-mediation

Mediation 101: What is a Pre-Mediation Statement?

July 2, 2012 By David Leave a Comment

Q: I have a mediation coming up; and the Mediator’s retention letter states that she requires “Pre-Mediation Statements” from the parties…what is that, and how do I comply?  This is my first rodeo.

A: Many mediators follow a practice of requiring a pre-mediation conference, most often by telephone.  The mediator’s preference or the parties’ agreed approach to a pre-mediation statement [“statement”] should be addressed at that conference.

In practice, preferences vary. Some mediators request a non-confidential statement that is to be shared with the other side[s], often with the option of providing a confidential addendum to the mediator only. Others prefer a strictly confidential submission only to the mediator. Non-confidential statements at times can be so focused on “briefing” the merits of one parties case, that the opportunity to explore one’s own, and the other sides’ options are missed. Conversely, if a party makes positive inroads towards a conciliatory approach in a strictly confidential statement, “unlocking” that confidence can be a challenge during the mediation.

The content of the statement can also vary. But a list of possibilities includes the following:  1. A brief summary of the dispute [references to pleadings are often encouraged in lieu of exposition]; 2. Confirmation of attendees at mediation; 3. Summary of settlement negotiations to date [if any]; 4. Expectations/Goals of party from mediation process; 5. Disclosure to mediator of particular circumstances, or issues that may shed light upon current posture of one or more parties; 6. Counsel’s observations of party behavior or priorities that might assist mediator.

Many mediators have a preference for particular content that has proven useful in the past. This writer often asks for a party in a confidential statement to assess the best and worst parts [upside/downside] of both their own and the opponent’s case; and hopefully this is done in conference with the attorney’s own client.  At times, when substantive legal issues warrant, a request for limited citation to one or two key or seminal cases is requested. Also, specific inquiry into prior relationships between the disputing parties, and whether there is any preference to continuing the relationship can be useful.

These optional inquiries may not always generate actual content, but it has been observed that requiring counsel and their clients to at least think about such issues, sets a positive tone for when the parties first come together.

Filed Under: Mediation, Mediation 101 Tagged With: mediation, pre-mediation

Contact

Ten East High Street
Carlisle, Pennsylvania 17013
Telephone: (717) 243-3341
Facsimile: (717) 243-1850
Email

Archives

  • November 2012
  • October 2012
  • August 2012
  • July 2012
  • June 2012

Categories

  • Ethics
  • Mediation
  • Mediation 101
© Copyright David Fitzsimons. All rights reserved. Nothing on this site is to be taken as legal advice.
No communication between David Fitzsimons and readers of this site is to be inferred to cause an attorney client relationship.