WHY SHOULD YOU SUBMIT A WRITTEN MEDIATION STATEMENT?
Updated: Aug 7, 2021
As a Mom, I could give the Mom answer: Because I said so. As a Mediator, I could give the same answer. But, that answer does not an article make, so here is my explanation as to why submitting a mediation statement is good, sound practice. As you know, there are rules which govern the mediation process. What you may or may not know is, while there is no rule requiring the submission of a written statement to the mediator in the 8th Circuit (where our office is located), there is in other circuits such as the 4th (Duval). There, the trial judge will enter an Order referring the case to Mediation and in the Order, it is specified the parties must submit a written statement within 10 days of the mediation date. If no such order is entered by the trial judge, it is then up to the individual mediators to request a written statement, and this request is typically included in the mediators Notice of Mediation or in their engagement letter. So, if a written statement is not required, why do one? Answer: You do one because it can do nothing but help you, and your client. It helps you, as it forces you to review your client's case, including your position on liability and recoverable damages, as well as consider what the opposing side’s positions will be, well before the mediation date. It helps you to prepare your client for what they are likely to hear at mediation and to be prepared for push back regarding their case. Preparing a statement assists you to prepare not only yourself, but the mediator as well. Don’t you want your mediator to be prepared and knowledgeable about the facts and issues of your case? Of course you do - it is why you are most likely using an experienced lawyer as your mediator, and not someone who has no prior legal experience. As a mediation participant, a statement allows the mediator to consider your clients claim or defenses, come up with questions or concerns, think ahead of time how these positions will be viewed by a jury or Judge, and be able to hit the ground running rather than play ‘catch up’ over the course of the process. Further, if there are legal issues that are unusual, mediators can review case law and jury verdicts to gain insight into how these issues have played out in other cases and pose relevant questions to each side. Think about the factors that go into your selection of a particular mediator for a particular case. Do you want someone who has has a reputation as a qualified mediator? Do you want someone who has or had the reputation as a qualified litigator or Judge? Then, think about what made them good at what they did or do. Most likely, you will conclude it was because they were not just knowledgeable, but also prepared. A mediator does not live with your case as you do, for years or even months. At most, we have an ability to live with it for days prior to the mediation and can only do that if you give us the information we need to be both prepared and knowledgeable. As a practitioner, do you file a Response to the other sides Motion? You probably do. Why? Because, you want to go into a Hearing with the Judge having seen both sides of an argument. Give the Mediator that same information. And if you run out of time, a statement does not have to be formal - an informal email will suffice as will a copy of a PowerPoint presentation. Heck, even a phone call will do. Just do, something. If the old adage is correct - there are two sides to every story, let the Mediator in on your side ahead of time, so they can do what they do best - help the parties to see those respective sides and resolve your case.