Mediators are similarly relieved when advocates take an active role in preparing and collaborating for an effective mediation. One of the key tools in preparation are mediation statements from advocates representing clients in a legal dispute. They have, after all, been counseling their clients, preparing pleadings, and marshaling the arguments they anticipate will help their clients prevail in a litigation. When asked by mediators to draft a mediation statement, advocates are generally cooperative in submitting timely statements that discuss the facts and law applicable in their clients’ cases. What they generally lack is a focus on negotiation approaches that might ensure a successful process such as assessing how their submissions might help advance a productive mediation. If they fully appreciated how powerful this tool is in shaping and influencing what transpires in the mediation room, they might equate their effort to that of the two women’s practical and strategic view of the peril Mr. Douglass faced.
Many times, advocates simply rework an existing case memorandum and tack on a “position” in the summation, whether it be a desired legal relief or a monetary amount. This “position” statement generally tends to propose or justify the same result sought in the litigation. As an advocate, you should consider that mediators today have access to electronic court platforms and are already aware or can readily access the pleadings in your case and therefore are aware of the relief you are seeking and the defenses that will be argued by opposing counsel. Statements that repeat already submitted documents present a litigious case view that is rooted in the past rather than on what the mediation process is about. The mediation process is intended to move the parties to the future—one preferably in which the dispute is resolved.
As an advocate, you should realize that positive negotiations start way before you sit down at the mediation table with your opposing counsel. Maintaining a professionally civil relationship with your adversary is an obvious first step. Secondly, obtaining an adequate amount of discovery information helps you understand what your adversary may or can achieve. Reflect on how the evidence discovered to date can be used in crafting a mediation statement that can help educate both opposing counsel and the mediator. Aside from an analysis of the respective rights and responsibilities of both parties considering the evidence you have available, let an empathic view of the strengths and weaknesses of each party’s position inform your description of how value can be created for both parties.
Note that clearly advising your client of how the facts or law might be interpreted against the client is equal to the professional responsibility you have in vigorously advancing the client’s rights in a given situation. A mediation statement that lays out the strengths and weaknesses of a client’s case, taking into consideration opposing counsel’s pleadings, evidence, and potential damage scenarios, more effectively serves a client’s interests and pocketbook in a mediation than maintaining a litigious stance. These statements may be shared with opposing counsel, but mediators also offer advocates the opportunity to restrict to mediators’ eyes only any information the parties prefer to keep confidential. An advocate who advises his or her client in advance of the goal of mediation and the advocate’s plan for the negotiation effectively seizes the opportunity provided by a mediation statement. The benefit of this exercise can be twofold: It prepares the client for what to expect in the mediation process because of attorney-client discussions of the pre-mediation information available, and it enhances the client’s ability to reasonably evaluate the options that may surface in the negotiation of proposals and counterproposals during the mediation. Being prepared for the negotiation and having an onboard client is a more effective approach than reacting to offers in an ad hoc manner.
The mediator’s role as an impartial facilitator of the process without question is enhanced by the parties’ preparation. The mediator’s toolbox (reality testing, reframing, proposing solutions, etc.) will be more effectively deployed when advocates are prepared. Drafting an effective statement will assist the mediator to reflect back to the parties what each has identified as dispensable or indispensable factors in achieving their clients’ goals for the mediation. Among other considerations, they may reflect factors such as the likely value of the case after an investment of court costs, additional discovery efforts, potential motions, witness preparation, travel, statutory cost-shifting exposures, attorney fees and clients’ time away from their work or business, and the likelihood of success. Equally significant, an effective statement will assist counsel in maintaining the flexibility required to deal with the ups and downs of the negotiation process, including evaluating novel and possibly unanticipated proposals that might arise. It can help the parties weigh personal goals that can arise as well in this more informal process.
Having a well-thought-out mediation statement provides you with a “game plan” that will enable you to assess whether the proposals advanced within the mediation process, creative or not, get you closer or not to fulfilling your clients goal or goals in the process. Taking advantage of this tool will enhance the already existing certainty and control the mediation process affords both client and advocate. Be an effective peacemaker—compromise with a plan.
