As lawyers, when we think about a case headed to mediation, the issues sometimes seem obvious, and we may even think, this case doesn't “need” to have a mediation position paper or mediation statement as they are sometimes called. I confess that I even had cases as a litigator where that was a tempting thought.  However, as a mediator, I see things from a different perspective.  In that, I cannot stress enough the importance of taking the time to prepare a mediation statement.  But I wanted to take it one further, what makes a good one?  I came across an article that was really helpful on this topic.  Brian Farkas & Donna Erez Navot, First Impressions: Drafting Effective Mediation Statements, 22 LCLR 157 (2018).  The balance of this blog post pulls some key thoughts and considerations addressed in their article.

Key points:

1. 1. Length: 5-10 pages, single-spaced following a letter format with well-organized topical sections.
   2. Include relevant exhibits, e.g., photographs, critical records, and pleadings when necessary to frame the merits of your position.
   3. Include legal authorities that would be influential or dispositive of key issues in the case.
   4. Use a conversational rather than adversarial tone.
   5. Consider whether the position paper should be made available to the opposing party(ies) or just to the mediator.

The law review article relied upon a survey conducted of nearly 200 lawyer-mediators in New York and more broadly the American Bar Association.  Among the key points outlined above, a strong majority of mediators surveyed wanted to have a real sense of a party's settlement position before the mediation begins; this can be achieved through a confidential statement to the mediator only or pre-mediation call with the mediator. 

Having a short confidential or private caucus pre-mediation call with the mediator,  often will prove insightful because the party can tailor their position statement in style, format, and detail to what will most help the mediator.  In other words, help the mediator, help you.  

Most think in terms of a mediation statement being for only the eyes of the mediator, and while this is often the case, consideration should be given to providing a statement also to the opposing party(ies).  One might be surprised to learn the positive impact a well-worded position paper sent to the opposing party may have with regard to reframing one or more issues in a light more favorable to your client. The tone should reflect a position that acknowledges that resolution will require compromise of the parties, which thusly means there is some measure of validity that must be attached to opposing view(s).  A relaxed tone within a mediation statement shared with the opposing party can soften the adversarial nature that often precedes mediation.  This can be influential in presenting a more humanistic or reasoned approach, which may very well set the stage for a successful outcome at mediation.  After all, the opposing party(ies) are people also.

To be most effective, mediation papers must be submitted well in advance of mediation.  These papers need to have time to circulate among the decision makers for the opposing party, and may have an added benefit of influencing settlement authority that comes to mediation.  A well-reasoned and organized mediation paper will at a minimum demonstrate one key point: you are prepared.

Keep in mind that while generally mediation statements are not admissible, there are some exceptions, and so you should be wary of these potential scenarios.  Id. at 165.

If I can be of help in getting your case resolved through mediation, please contact me.  You can find out more here:   Mediation Attorney in Georgia | Rumph Childers P.A.

REFERENCES:

1. 1. Brian Farkas & Donna Erez Navot, First Impressions: Drafting Effective Mediation Statements, 22 LCLR 157 (2018).