One of the Biggest Mistakes Lawyers Make in Mediation . . .
One of the biggest mistakes lawyers make in mediation is submitting a poorly conceived and poorly written mediation statement.
“But wait!” you’re probably saying “I don’t do that.” If you’re reacting that way, then, more likely than not, you’re one of the culprits.
Let’s get a quick baseline here for what a good mediation statement is:
It’s confidential. It’s not shared with the other side and, instead, reveals confidential information that you are sharing with the mediator in an effort to achieve resolution.
It has resolution in mind. It is not about winning so much as it’s about finding the middle ground where a self-determined resolution can occur.
It is contemplative. It examines the strengths and weaknesses of not just your side but, more importantly, your opponent’s side as well.
It is responsive to the instructions of the mediator. If the mediator asks you to address certain issues in your brief, there’s a reason why; the mediator feels it is something that is important to achieving resolution.
Let’s get a quick baseline here for what a good mediation statement is not:
It’s not a legal brief. Briefs present arguments and mediations are not about arguments.
It’s not a regurgitation of the Complaint.
It’s not a regurgitation of the Motion for Summary Judgment or the Brief in Opposition.
it doesn’t argue why you believe your client should win.
It’s not silent on how resolution can be achieved in the eyes of your client.
In a recently published article, attorneys Kathleen Kline and Gregory Sturges of Greenberg Traurig correctly point out that “ADR requires many of the same skills and capabilities as traditional litigation.” They identify some of these skills (such as the ability to write well and the need to thoroughly know your case) but err on one specific point. They conflate arbitration and mediation. This kind of mistake is common and attorneys must remember that arbitration and mediation are different procedures with different objectives..
Lawyers must remember the goal of mediation is resolution and gear their thinking in that direction. The first step to doing so is writing the mediation statement as a well-written statement will frame the issues needed to be addressed to achieve settlement. Failure to do this is one of the biggest mistakes lawyers make in mediation.
To read Sturges’ and Kline’s article, published on Law.com, please click here.