Mediation Statements: Give Them the Attention They Deserve and Then Give Them to the Right Person
Preparing a mediation statement gives you the opportunity to take a serious look at your case and at your opponent’s case. Most often, the parties do not exchange their mediation statements, opting for “confidentiality.” This article explains why you should reconsider that position and agree to exchange mediation statements so that both sides come to mediation prepared and with the best chance to reach a settlement.
If you have mediated with me, you have probably seen this list of suggestions for inclusion:
- A brief review of the procedural status of the case including what will happen next if the case is not settled;
- A brief factual overview;
- Identification of the key factual and/or legal issues including a detailed damages analysis;
- A bullet-style list of your factual and/or legal strengths;
- A candid bullet-style list of the other party’s factual and/or legal strengths along with your response;
- Highlighted copies of any key documents or pleadings;
- Any relevant history between the parties;
- Any underlying nonmonetary needs of the parties;
- Any history of settlement discussions including the last proposals; and
- A summary of any other helpful information.
If you follow this outline, you should be able to produce a thorough submission that summarizes your view of the case and the evidence in support. Once you have prepared your submission, though, who do you send it to? I encourage the parties to exchange their mediation statements. Many still do not. Here is why you should.
Your mediation statement is a key opportunity to convey your side of the case. And although it is effective to convey that to the mediator, it is even more important to convey it directly to the other side. You probably already know – if you have talked to the other side – that they do not see the case in the same way that you do. That may seem to you confusing or disingenuous since both parties are working with the same facts. What you may not realize is that, even with the same facts, the case can be very different depending upon your perspective. That is partly because of a couple of cognitive biases that we all have: motivated skepticism and biased assimilation.
Motivated skepticism is the tendency of individuals to perceive information that is consistent with their preferred judgment or conclusion as more valid than information that is inconsistent with that conclusion. It involves self-enhancement bias (the ready acceptance of information that is consistent with your position) and self-protective bias (the reluctance to accept information that is inconsistent with your position). Studies have found that consistent information is examined less critically than is inconsistent information. As a case develops, and more and different information is discovered, both sides often feel that their case is getting stronger and the other side’s case is getting weaker. That is because the new information is not looked at the same way by both parties.
Biased assimilation is the tendency of people to interpret new or subsequently learned information in a way to maintain their initial belief. It includes the propensity to remember the strengths of confirming evidence, and the weaknesses of disconfirming evidence; to judge confirming evidence as relevant and reliable, and disconfirming evidence as irrelevant and unreliable; and to accept confirming evidence at face value, while scrutinizing disconfirming evidence hypercritically. The tendency is so strong that studies have shown that belief polarization will increase, rather than decrease or stay the same, when mixed or inconclusive findings are assimilated by proponents of opposite viewpoints.
So, back to your mediation submission. This is one of your best opportunities to convey your side of the case and demonstrate how the evidence supports that position. It may be the first time that the other side has seen the evidence in that way. Why would you pass up that opportunity when the other side plays such a large role in the settlement that you want to reach in your case?
It is true that the mediator can digest confidential mediation statements and convey the fact that the other side sees the case differently, but the parties need to recognize the limits of the mediator. You will always know more about the details of your case than will your mediator. But here, a more practical factor comes into play.
If you are trying to have the other side look at the case in a new light, will it help or hurt your cause if the other side does not see that coming? Recall how you react when you are surprised. Does that make you more or less likely to change your position? Now add another layer: your client. If your advice to your client could end up changing, perhaps dramatically, at mediation, how easy or difficult will the mediation be? Will you be more or less likely to settle?
Supplying the other side with your mediation statement before the mediation allows your opponent and his or her client to digest your view of the case and avoids the surprise at mediation that can derail negotiations which could otherwise be productive. And providing that preview can also assure that the proper person(s) will attend the mediation or be involved in the settlement decision (for example, persons with layered settlement authority at an insurance company). Exchanging submissions helps both sides.
The primary argument against exchanging mediation statements is that they contain
confidential information. Sometimes that is true, but most of the time both sides have the same basic facts. There is some risk in previewing arguments that will be used at trial, but there is a larger risk that your best arguments will never benefit you because trial will likely never occur. In any event, if you have information that you do not want the other side to see, you can always submit that information to the mediator separately, thereby getting the benefits of both disclosure and confidentiality.
Exchanging mediation statements forces you to put your best foot forward and to see your own case in a different light. That is a good thing. You would not want that to happen for the first time at trial.
Take the preparation of your mediation statement seriously and make it as strong and well-supported as you would if it were being presented to a jury. Then give that statement to your opponent before the mediation so that they can digest it and come prepared to negotiate. Then review the statement that you have received from them and revisit your own view of the case. Now you are ready for a productive discussion and have the best chance to reach a settlement.
See you at mediation.
Jim Mathie is a full-time mediator serving throughout Wisconsin with offices in Milwaukee. Prior to opening Mathie Mediation Services LLC, Jim was a litigator representing a wide spectrum of clients in civil litigation for nearly 30 years. He is on the board of directors for the ADR section of the State Bar and is the current Chair of the ADR Section for the Milwaukee Bar Association. Jim is a past president of the Wisconsin Defense Counsel.