May 12, 2019

Preparing Mediation Statements

By Chuck Doran

Mediation statements are brief narratives submitted by counsel on behalf of their clients (or by the parties themselves if they are pro-se) to inform the mediator and their counterparts about their case. Historically, mediation statements have been referred to as “position statements,” since they are a summary of demands, as well as an outline of the weaknesses of the other side’s legal arguments. With planning and purpose, mediation statements can provide much more value than simply stating a party’s position. Mediation statements offer parties an alternative approach to preparing for the mediation by having each party define success in advance, which in turn increases the chance of reaching an agreement.

Approaching the Mediation Statement

Mediation statements can serve as a roadmap to settlement by helping parties organize their thinking and shift from positional to interest-based thinking. A helpful way to get into this mediation mindset (and find inspiration for your mediation statement) is to prepare for your mediation by visiting MWI’s Mediation Preparation Page. This page provides a list of questions to help parties clarify their goals and interests, explore possible options for agreement, and get into the mindset for a productive mediation.

Your case manager or mediator should also help both parties establish whether the statements will be confidential for the mediator only or will be exchanged between all parties and counsel. The default approach is the latter since the mediation statement serves not only to inform and help the mediator prepare but also to facilitate the exchange of information between the parties in advance of the mediation. If mediation statements will be shared among all parties, be thoughtful about the intent and tone of your statement. If it’s not clear whether the mediation statements will be exchanged, or if you want your statement to be confidential for the mediator only, check in with your case manager or mediator.

Writing a Mediation Statement

Mediation statements are designed to be a brief (5 pages or less) summary of the background of the case, what the party is seeking to accomplish in mediation, relevant market standards and statutes to inform and persuade, and any areas where the parties might focus their attention to build an agreement.

Let’s look at each section:

• Background of the case:   Informing the mediator about the history of the case and the negotiations to date will help the mediator and the parties better understand each party’s perspective;
  
• What each party is seeking to accomplish:   This section is both an important and often misunderstood part of a mediation statement. Being clear about what the party is seeking to accomplish – specifically, meeting their interests – will increase the chance that they will get their interests met. At the same time, parties are often reluctant to share their interests out of fear that disclosing this information will be used against them. This can be avoided by stating what they are looking to accomplish (e.g., in a commercial franchise matter, “reach an agreement that allows the franchisor to address the franchisee’s unique market concerns without creating a competitive disadvantage for their competitors”) vs. how it might be resolved (“we won’t pay more than $500K to resolve this”). The former identifies shared goals, which encourages parties to collaborate and build value together. The other approach sets the parties up to haggle and possibly compromise, leaving both parties equally unhappy.
  
• Relevant market standards and statutes:   The mediation statement provides each party with an opportunity to present information that will increase the chance that the discussions will be based on measurable data, or objective standards, as opposed to an unverifiable wish list. Parties can also include relevant statues that would help the mediator and other party understand the legal argument that would build their case should they choose to go to court as an alternative to a mediated agreement.
  
• Potential options and areas of agreement:   While not always applicable, a mediation statement can include potential options and areas of agreement including progress made to date, options that meet both sides’ interests, and process commitments such as a willingness to engage in the mediation in good faith.

Mediation statements are typically due via email about two weeks before the start of the mediation. Once both copies have been received by the case manager or mediator, they will be sent to each side at the same time.

If written skillfully and strategically, the mediation statement can be an impactful opening salvo that will increase the chances of finding success and resolution in mediation!

To learn more about MWI’s mediation services, visit www.mwi.org/mediation-services or contact Chuck Doran, Mediator, at cdoran@mwi.org or 617-895-4026.

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