Few commercial litigation cases proceed to trial—the risk of leaving the fate of a case to a group of citizens who did not volunteer to decide your case is just too great. Accordingly, mediation is one of the most critical points in a case, and one of the key moments for a lawyer to achieve success in a commercial litigation matter. A good confidential mediation statement can be a roadmap to help the mediator help you obtain a successful result.
Here are five tips to for a more effective confidential mediation statement:
- Be upfront. Your first paragraph should tell the mediator who you represent, who the opponent is, summarize the claims and explain what is at stake. This should be short and to the point. This suggestion may seem obvious, but too many lawyers start their statement with multiple paragraphs of background facts without giving a brief summary up front about who the parties are and what the case is about. The mediator is then left to sift through pages of facts and wonder why they matter. Start with a summary of who the parties are and what is at issue before getting into the facts and the details of the claims.
- Provide a concise summary of the facts and claims. The next section should provide details to help the mediator quickly learn the key facts and how they relate to what is at issue. No mediator will know the facts as well as the lawyers, nor do they need to. The mediator needs to understand the basic facts and background about the parties to develop strategies to help the parties resolve the case. The mediator will not have the patience or need to read an appellate brief. Avoid prose but use headings and bullet points to organize the section, and to summarize the claims, defenses and background about the parties. This style makes it much easier for the mediator to quickly get the key information. Using the same format, you should also include a summary of the posture of the case and describe the status of discovery and key dates such as summary judgment hearings or trial.
- Summarize prior settlement discussions. It is important for the mediator to know the history of efforts to resolve the case. This section should be specific as to all demands and offers, including details that affected the prior discussions, such as key rulings or depositions that occurred before or after a demand or offer was made. If no settlement discussions have occurred, explain why. This information will help the mediator craft a strategy in advance of the mediation based on prior efforts.
- Identify strengths and weaknesses. This is a critical component of a mediation summary. A good lawyer will not only focus on the strengths of her case but will also recognize weaknesses, whether in facts or law. Often a client has tunnel vision and sees a case from an emotional or narrow point of view and even his own lawyer cannot help him see the other side. A mediator can help a lawyer convince both an opponent and even her own client that weaknesses exist and compromise may be necessary. In a confidential mediation statement, it is helpful to include factual and legal weaknesses to allow the mediator to begin developing a strategy to help both sides compromise. If key documents or deposition testimony are important, this is a good place to summarize them. But keep in mind that most mediators will not take the time to master the facts, so be brief and use a summary format. During the mediation, you can then bring out the details, and the mediator will be somewhat familiar with them already.
- Bring it home. Close your mediation statement with a suggested path forward. For example, if you think starting the mediation with both sides making opening statements would be helpful, explain why and what you hope to accomplish. If you think that opening statements might drive the parties farther apart given the hostilities to that point, or that the parties have seen their lawyers in action and it would waste valuable time, say so. But your conclusion should offer the mediator a suggested starting point to kick off the session and indicate how you hope it will lead to a resolution.
Make the mediation statement your roadmap to a successful settlement. This is your chance to get the mediator focused on how you think she can help you resolve the case. Be brief, be specific and be strategic to get the mediator focused and ready in advance of the session to help resolve the case.
Mark A. Romance is a partner with Day Pitney LLP in Miami, Florida.
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