We all know that mediation is a very different process than litigation or arbitration and that mediators are not judges. So why do we insist on treating the processes as if they were one and the same? I am talking about mediation statements, both written and oral. Serving as a mediator, I have yet to see a mediation statement that could not be used, with little change, as the opening statement in an arbitration of the same case. An advocate’s recitation of the facts is laid out, along with a discussion of the relevant law and arguments made why the author’s client should prevail. I have even gotten statements closing with a request that I, as mediator, "rule" in favor of the party submitting the statement. Whom are we writing this stuff for? Do we expect the other side to read our statement and beg to settle on our terms? The problem is widespread and most lawyers are guilty of it. But it is very hard habit to break. As a mediator I should know better, but will admit to having written an advocate’s brief masquerading as a mediation statement on more than one occasion. How does a trained advocate adjust his or her approach when representing a client in a mediation?
First and foremost understand who your audience is. It is not the mediator! Mediators don’t settle disputes, the parties do. So while you may address your statement to the mediator it should be written primarily for the other parties. Presumably you want them to read and seriously consider the points you are making so avoid phrases like "the defendant’s frivolous arguments" or "the patently false allegations made by the plaintiff." You hope to come out of the mediation having reached an agreement with the other side and insulting them going in will not make that any easier.
If you are the party looking to get paid explain your damages clearly and with as much detail as necessary so that they are understandable and above all credible. Setting forth gross numbers with no discernable rationale may signal you don’t really know what your damages are, or worse that you are having difficulty proving your damages. If you are defending against a claim tell the other side exactly what your issues are. A general denial simply signals that you have not done much in the way of studying the claim, or worse, that you have no real defense.
Don’t hesitate to make any valid argument you have, but don’t make arguments that you don’t seriously intend to pursue. You were required to assert all possible claims and defenses in your pleadings. You don’t need to do that in your mediation statement. If you are the defendant, conceding liability where it is not really an issue will send the message you are serious about trying to resolve the case and may add credibility to your arguments about the plaintiff’s damages. A plaintiff who has more theories of recovery than facts to back them up will be perceived as someone who is less than confident in their own case.
Many mediations these days are court ordered. Without getting into a debate about whether court ordered mediation is a good or a bad thing (I change my mind depending on what day it is) your statement in a court ordered mediation can be used to send a clear message about your views on whether that particular case is ready for mediation and if not what you need to do before it will be ready. But don’t say the case is not ready to be mediated because you have not had any "discovery." You don’t need discovery, you need facts and hard data about the claims or defenses and you should use your statement to explain exactly what it is you need and why you need it. If you do that I think you will find that most mediators will do whatever they can to see you get the information you need to make intelligent decisions about resolving the dispute.
Don’t bluff in your mediation statement. All too frequently lawyers will write that if the case does not settle they will be making any number of motions that will decimate the other side’s case. If you have the goods get them out on the table. Explain what your motions will be, why you think they will be successful and why the other side should resolve the case on the terms you are proposing. Otherwise your bluffing will be seen for what it is.
Actively involve your client in the writing the mediation statement. The client will be expected to participate in the mediation itself and starting that involvement with the drafting of the statement can be a valuable experience for the client and you. Especially for the client who expects you to be an aggressive advocate in every encounter with the other side, getting them involved in drafting the mediation statement will give you an opportunity to explain exactly how and why mediation is different than litigation. During the mediation the client will be asked to make some difficult decisions about compromising positions they have long held and are deeply committed to. If they participated in the preparation of the mediation statement they will have already given some serious thought to the dispute and hopefully will be able to make decisions based on their best interests, not just their positions.
mediation statement should be an honest examination of both your case
and what you understand to be the other side’s position and an
explanation of where you think the differences lie. The ultimate goal is
to get the other side to understand you. Understanding does not always
lead to agreement, but resolution is almost impossible without
This article was originally published in Building Resolutions, News from the AAA Construction Division, Issue #1 March 2010
*Robert J. MacPherson is a Fellow of the American College of Construction Lawyers and former Chair of the ABA Forum on the Construction Industry. He practices construction law with Gibbons PC in Newark, NJ and serves as a mediator and arbitrator of construction disputes. He was named the James Boskey ADR Practitioner of the Year in 2001 by the Dispute Resolution Section of the New Jersey Bar Association. The author can be reached at RMacPherson@gibbonslaw.com.
All rights reserved to owners of original works, published here by permission of the author.