Preparing for Mediation
The foundation of a good mediation is preparation by both sides. I ask the parties to email me a written statement about a week before the conference (some lawyers call them briefs). The statement outlines the facts, each party’s position, and what they would like to see happen in the mediation. The parties usually attach exhibits to the statement, which are copies of important documents that they want to be considered in reaching a resolution. I encourage mediation statements to be shared well in advance amongst the parties. If you want to communicate something confidential that you don’t want to be disclosed to the other party, we can talk about it by phone, or you are free to send me a supplemental email which will remain confidential.
The mediation statement provides a very useful outline for our mediation conference, and it sets the stage for an efficient and rational negotiation. Ideally, all of the basic information contained in your statement will have been exchanged between the lawyers earlier in the case. The statement is just an organized presentation of that information.
Most lawyers provide the following sections in mediation statements.
1. Parties and Representation
Describe who is who, and if you have an attorney, family member, or other advisor that is going to attend the conference.
2. Statement of Facts
Provide a statement of the facts of the case from your perspective as to what’s gone wrong, and why it went wrong. You're encouraged to fully express the facts from your position. If there are facts of the case that may be against your position, you can also deal with those facts in your statement.
3. Liability
This is the discussion of the legal basis for your claim, and the application of the law to the facts. This is where you set out who is or is not responsible, why are they (or not) responsible, and what you think about the other side's legal arguments.
4. Damages
List your understanding of the economic, non-economic and “other” damages in the case. The other side will also do this.
5. Conclusion
Finally, include your view on how you want to see the issue resolved.