Mediation Statements

Providing the mediator with a mediation statement is your opportunity to educate the mediator about the key facts of your claims or defenses as well as many other important matters as described below. Providing the mediator with this information—in advance of the mediation—will save time and energy at the mediation itself. It also is a good opportunity to explain your view of the law, particularly nuances in the law as they apply to your facts. It is the time when you first introduce the mediator to the parties and witnesses and shed light on motivations and expectations.

A mediation statement can be used as a tool to provide the mediator with confidential or sensitive information you may or may not want to use in the mediation. This is common, particularly in employment cases. Should this be the case, identifying it ahead of time in your mediation statement provides important perspective and allows you to get the mediator's sense of whether and how it could be used. Your mediator should discuss such facts with counsel, and may even offer an opinion on the usefulness of disclosure.
The following is a sample list of information that is helpful to include in your mediation statement (in addition to an explanation of the facts and applicable law):

  • ✓  A description of who will be attending the mediation, their roles (including who the decision-maker(s) is/are), and how they may impact the
        potential for resolution;
  • ✓  An explanation of the interpersonal dynamics at play;
  • ✓  A listing of known or perceived impediments to settlement;
  • ✓  A statement regarding the status of the case and any previous settlement discussions;
  • ✓  A prediction regarding what will happen if the case is not settled at mediation;
  • ✓  The identification of any client control problems (if your client is going to see the mediation statement, save this for your conversation with
         the mediator when your client is not present);
  • ✓  A description of your relationship with opposing counsel;
  • ✓  An explanation of what you believe the mediator should focus on or emphasize with your client or the other side;
  • ✓  A disclosure of confidential or sensitive information;
  • ✓  Your description of potential damages and their values;
  • ✓  Concessions regarding weaknesses in your claims or defenses, as well as those of your opponent; and
  • ✓  Suggestions for creative solutions.