Do Not Blow Off the Mediation Statement

I can’t begin to count the number of times that parties or attorneys have failed to turn in a mediation statement in advance (as requested!) of the mediation conference. I always scratch my head at this, wondering why a party or attorney wouldn’t give their all to try to effectuate a resolution in the mediation. Or why a party or attorney would allow the other side’s mediation statement to go unanswered. What’s worse than this, potentially, is the mediation statement that superficial, perfunctory and functionally useless.

Obviously, meditation statements allow the mediator to “get up to speed” quickly and understand the basic gist of the dispute. But good mediation statements go beyond that. Good mediation statements are the product of rigorous intellectual analysis. They “force the parties to think and analyze their case; to give some thought about the strengths and weaknesses of their respective cases and consequently, their position on settlement,” says noted Californian mediator Phyllis Pollack.

Discussing a complex mediation with three defendants, Pollack notes “Had each party prepared a brief, hopefully, each would have discovered the strengths and weaknesses of their respective cases and thus what would be a viable settlement demand and response. Moreover, it would have required the defendants to confer beforehand to discuss the matter and arrive at a unified response rather than taking an hour or more during the mediation to do so and then seeking authority from their respective clients for it.”

It’s simple. To give a party the best chance to resolve a dispute in mediation, each party (and the attorneys) must work to understand potential resolution before the mediation begins. That critical analysis should be mandatory. Mediation statements that are simply synopses of pleadings or regurgitations of dispositive motions just don’t cut it.

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