April 12, 2019
By Chuck Doran
Mediation statements are brief narratives submitted by counsel on behalf of their clients 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.
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.
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:
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!