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.