by Rachel Gupta from MEDIATE newsletter
In light of backlogs resulting from closures due to COVID-19, many courts are turning to presumptive ADR programs. As a result, mediation has become, more than ever, a necessary alternative to litigation. Many lawyers and clients, however, are less experienced with developing mediation strategy, which in turn impacts the potential for the parties to reach agreement. For example, mediation statements are a critical opportunity for parties to educate the mediator and help her prepare for the day of mediation. Oftentimes, lawyers do not use this opportunity as effectively as they could. The most useful mediation statement is one that: helps the mediator understand why the parties are where they are; what issues need to be resolved prior to reaching an agreement, and what is important to a party in any negotiated resolution. The following are five do’s and five don’ts to keep in mind when drafting a pre-mediation statement.
Five Do’s for Pre-Mediation Statements:
- Do provide the mediator with sufficient history to understand who the parties are, their relationship, the nature of the dispute, and the procedural status of any litigation.
- Do identify any gating issues that need to be addressed in order for the parties to resolve the dispute.
- Do tell the mediator “why” your stated positions are what they are.
- Do inform the mediator of your willingness to explore alternative currencies to a cash settlement.
- When you have the opportunity to provide ex parte submissions to the mediator, do trust the mediator to keep the information confidential.
Five Don’ts for Pre-Mediation Statements:
- Don’t regurgitate your memorandum of law from the motion to dismiss or summary judgment motion.
- Don’t make unreasonable demands as your opening position.
- Don’t make accusatory or derogatory statements about the other side.
- Don’t insist your case is infallible.
- Don’t conceal important facts from the mediator.
Ms. Rachel Gupta has her own ADR practice, Gupta Dispute Resolutions LLC, where she serves as a mediator, arbitrator, and outside general counsel to small businesses.