Position Statements and Mediation
As part of their strategy for the mediation, parties may determine whether or not a mediation statement should be submitted to the mediator in advance of the mediation. In the usual course of mediation, the mediator will know nothing about the case except who the parties are, the names of the attorneys who represent them and the court or agency in which the case is pending. Parties may consider whether they should submit mediation statements to the mediator, before the mediation, in order to assist the mediator in understanding the case.
Position statements are not required, in most cases, and there may be some cases where premediation statements are not permitted. Assuming that mediation statements are permitted and that the party would like to submit a statement, the types of information that should be included in the mediation statement vary, depending upon the type of case and the claims involved.
Advising the mediator about the disputed issues and facts can be helpful, so that the areas of disagreement are clearly highlight. Areas of agreement can also be outlined, so that the parties will know which areas do not need further exploration. A mediator who is aware of the areas of agreement and disagreement can then help the parties focus on the issues that are most appropriate for the mediation process.
The position statement can contain information about the procedural posture of the case. If a motion for summary judgment or a motion to dismiss for failure to state a claim have been heard and decided by the court, then the results of that hearing would be helpful information for the mediator. A party may want to submit to the mediator a copy of the judge’s order and/or the parties briefs (assuming that they are not very long) so that the mediator may better understand the perspectives of the clients.
Regardless of the procedural posture, outlining prior settlement discussions will be important. Many times the parties come to the mediation with expectations based upon prior negotiations. I have had times when the parties’ memories differ dramatically on where the parties started and/or ended in previous negotiations. If the party is going to go backwards in a proposal to the other side, then the rationale for that change in negotiation would be helpful information.
A mediator will also be assisted by knowing who will be present at the mediation, that person’s title and the mediation experience of the participant. Mediators see lots of participants and hear lots of names at mediation. If the parties’ representatives mediate in jurisdictions across the country, then the mediator’s opening statement may be shorter than if the representative is a person from a small company that has never been sued. Also, a spouse, parent or child may want to accompany the party and, if so, advance notice to the mediator can be helpful.
If there are any scheduling issues, such as a plane flight or difficulties with child care, informing the mediator before the mediation would be helpful. Waiting until the last minute to let the mediator know could present timing issues for wrapping up a mediated settlement agreement.
A mediator can be aided by knowing whether there are any barriers to settlement as well as whether there are incentives for settlement, that exist outside of winning or losing the case. For example, if a plaintiff is moving out of the jurisdiction, or if a company is going to be sold, those facts would be helpful for the mediator to know.
A party should submit the mediation statement to the mediator well in advance of the mediation. Many mediators will be out of their offices for days preceding the mediation and in order for the mediator to have sufficient opportunity to review, the statement should be provided well in advance of the mediation date.
The statement should also be brief, no more than two or three pages. Attaching deposition transcripts and lengthy summaries, except in extraordinary cases, will usually provide the mediator more information than the mediator needs or wants.
Many cases, if not most, proceed to mediation without the mediator having reviewed a mediation statement. The parties also may want to clarify the mediator’s charges for reviewing premediation statements. If the parties would like to submit a premediation statement, then the information provided can assist the mediator in making the mediation run more smoothly.
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