Mediation is not something people are excited to be involved in, but it is necessary sometimes. Your mediation summary can make the process easier both for yourself, but also the mediator. A good mediation summary will include some key components, tell a story, take the right tone, provide evidence, and include a discussion of risk. Your summary should include a brief case description and the legal issues involved in it.
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Introduce what the dispute is concerning. Give some information about where in the process the case is, and if there are any depositions or discoveries being requested or carried out.
Summarize the discussion, including what each party is requesting as settlement. Describe what you assess as preventing a settlement from being reached. If there are any important dynamics, such as personality conflicts, you believe are effecting the positions, then elaborate on them.
Explain what has occurred to bring this case to mediation, and why the complainant acted in a manner that has caused this mediation to become necessary. Your story should have a theme, all good stories do. Tone can facilitate or totally undermine the effectiveness of a mediation. Mediation works best when both parties enter it with an attitude of collaboration and problem solving. Approaching mediation as joint problem solvers means taking a cooperative tone. The proper tone and atmosphere is key for a reasonable and amicable settlement.
This means reasonable and logical language, rather than angry and accusatory language. The tone should be one conducive to de-escalating and solving the situation, not getting even or becoming emotional.
Attach your evidence to the summary when you submit it. Doing this shows you are not only being truthful, but are also prepared to go to court if a settlement cannot be mediated. Your evidence also helps by encouraging the other party to engage and explain their position. Sometimes sufficient evidence is all it takes for the other side to realize they are the one in the wrong and agree to your settlement request.
By not including evidence you are signalling to the mediator and the other side that you have a weak case, and this will make reaching a settlement with them extra difficult.
Focus your summary on risk factors.
Mediation case summary: A Ltd v B plc: an example
What will happen if the motion is granted or denied? How strong will the case be if its evidence is denied? Does it hinge on an eye-witness who may or may not be found in time for mediation or trial?The term is unfortunate because it implies the mediator is expecting a specialized, formal document.
Faced with writing and billing for yet another formal, legal document, many lawyers elect not to send anything at all to the mediator. Today I want to talk about some down-and-dirty ways to get mediation briefs done without spending a lot of time on them.
The key is to focus on the real purpose, which is to communicate information about the dispute to the mediator, in advance. Nobody is going to look at the brief except the mediator. You do not need a work of art. In fact, your mediation brief — or at least the bulk of it — is probably already sitting in your files.
Try looking at these documents:. Before a mediation, one of the most useful pieces of information I can get is a detailed demand package. If you are the plaintiff and you already have prepared a demand package that explains what happened, describes the injuries, and enumerates the damages, you essentially have a mediation brief ready to go.
I would appreciate your adding a sentence that tells me where the parties currently are in the settlement discussions. You can send me that response to show me your positions. If you have briefed any issue to the court, you probably included a facts sections to give the judge an understanding of the case. Copy and paste that fact section into your mediation brief.
If your case involves a dispute about what the law is, you may have briefed the issue to the court already. Again, copy and paste the relevant sections into your mediation brief.
If trial is on the horizon, you may have prepared your pretrial order. Given the advent of notice pleading, the complaint and answer may be very vague. But if they have some facts, they may be a good start. For many cases, someone made an accident or incident report that gives the basic details of what happened. If so, send it. If you have a photograph that is worth a thousand words or a smoking gun memo, send it to me. If it will not be obvious why the exhibit matters, you can send me a quick note about what you want me to look for in the exhibit.
If your case involves a dispute about the law, you may have already uncovered a critical case in your research.
Send me a copy of the case. It will help if you can give me a heads up on which sections of the case are the most important to your argument. Remember that mediators charge for reading the materials you send.
You want to send all of the material that will be helpful — but nothing more. If you are having trouble deciding whether to send something, err on the side of sending it.Mediation is a method of resolving issues between two or more parties without resulting to litigation. Most commonly, mediation is a voluntary method of alternative dispute resolutionbut on occasion, the court may order the parties to attend mediation.
To explore this concept, consider the following mediation definition. Mediation is defined as the attempt to settle a dispute through a neutral third party. Mediation is a structured process that allows people to negotiate the issues with a hands-on approach. The mediator serves somewhat as a referee as the parties exchange information, needs, and ideas.
The mediator also helps the parties with the bargaining process, where cooler heads prevail. Mediation is commonly used in family law matters, such as divorce and child custodybut it is also used in other civil cases.
While the purpose of mediation is the same in each case, a variety of mediation techniques used depend on the type of case, and how the mediator was trained. As the use of mediation became more popular, other methods were developed. Today, the three most common mediation techniques include 1 facilitative, 2 evaluative, and 3 transformative.
Each technique has acknowledged benefits, as well as criticisms. Facilitative mediation, the original mediation technique, entails the setting up of a very structured process to help the parties reach an agreement. The mediator asks questions, determines the interests and needs of the parties, validates their needs, and helps them normalize their points of view.
With this technique, recommendations by the mediator are not made, nor does the mediator offer an opinion as to how a court might rule. This technique is based on the settlement conferences held by judges.
The mediator using the evaluative mediation technique informs each party as to the weak points of their case or position, giving a professional opinion as to how a judge is likely to rule on the matter.
In evaluative mediation, the focus is on the legal concepts of fairness, and the legal rights of the parties, rather than on their individual interests and desires. The parties do not meet together in this type of mediation, but the mediator goes back and forth between the parties, presenting needs, concerns, and offers.
This helps avoid emotional conflict that would otherwise enter the discussions. This newest technique in mediation originated in the s. Transformative mediation works to empower the parties, recognizing their needs, values, and points of view. This requires the parties to meet together, with the mediator guiding the conversation, and encouraging the parties to work toward a positive outcome, not allowing them to get sidetracked in largely unimportant issues.
The type of mediation training required varies by jurisdiction. Mediation and arbitration have a number of similarities, as both provide alternatives to litigation. Both methods of alternative dispute resolution may also be used in conjunction with litigation, allowing the parties to continue their attempt to reach a resolution, while the case continues toward trial.
In the event a settlement agreement is reached, the trial may be cancelled. Mediation involves the use of a single third-party mediator, who remains neutral during the process. A mediator does not offer opinions or predict outcomes. Any agreement reached during mediation is non-binding, meaning that, if any of the parties change their mind, they can insist on continuing to trial.
Arbitration, on the other hand, may involve a single arbitrator, or a panel of arbitrators, who hear the case much like a judge would. Arbitrators collect information and evidenced, question the parties, and advise the parties when there is a problem with their position. An arbitrator provides a written decision a few days after the arbitration has concluded, and in the case of a panel of arbitrators, the decision depends on a majority vote.
Arbitration may be binding or non-binding. When a couple files for divorce, disputes often arise over the division of marital propertyas well as care and custody of the children. In many cases, each spouse hires an attorney to help them hash things out in court.Phone: Your written mediation summary is a crucial communication.
To your mediator it shows your talents, expertise and preparation. To your client it shows your persuasive powers, serving as a reminder of all the reasons they hired you. To your opponents it demonstrates you have a good story to tell, compelling evidence to back it up and the skill required to persuade judge or jury, should the case fail to settle at the mediation table.
I believe the most important audience is the later. The party needing the most convincing is your opposing party and her counsel. Mediation summaries offer a unique opportunity to craft precisely the message you wish to send the other side - without interruption, confident it will be read.
A written summary designed to influence the decision making process on the other side can move the dispute a long way toward settlement. What follows are my suggestions for producing a more cogent, persuasive and effective mediation summary. If your goal is to save time or money, of course, feel free to re-use your dispositive motion papers, your case evaluation submission or other written materials.
If your goal is to make the most of mediation, however, I encourage you to prepare a written summary individually tailored to the mediation process for your specific and unique dispute. Tell a story: In many cases, your mediation summary will be the first exposure the other side will have to your theories and claims in a single, coherent narrative. Tell your story in as persuasive and compelling a fashion as you can. We are moved by good stories. Some say we are hard wired to hear and respond to good stories.
The most effective trial lawyers are good story tellers. We sympathize and relate to the participants in a good story. Your mediation summary should be a good story, well told. Why did plaintiff bring this case? Why did defendant take the actions complained of at the heart of the suit? Humanize your clients and help us understand who they are and why they acted or reacted as they did. Build the story around a theme: The best stories revolve around universal themes.And let me say at the outset that while I am, of course, right with this answer, I welcome feedback from others, including my mediator friends out there, who think wrongly…I mean differently than I.
But with that said, I have two answers for you. The first is the standard, generic answer that will work just fine for most mediation briefs.
But if you are willing to go a little deeper into mediation psychology and toy with the possibilities of a more effective mediation brief, take a look at answer No.
Answer No. While it might do in a pinch, so will a simple phone call with your mediator, and the phone call will invariably be more effective and useful. Instead, try to think like a mediator and give him or her what he or she needs to do his or her job. Sure mediators are looking to understand the basic facts, law, and procedural posture of the case; but they are much more interested in discovering the BS — the Barriers to Settlement what did you think I meant?
Mediators are looking to discover the key one or two factual issues that are really in dispute; the one or two legal issues that the parties disagree on. What are the stakeholders really interested in. They want to know what the parties have already discussed in terms of settlement, and what they each think the problem is. Instead, I think most mediation briefs can be done in fewer words than this verbose answer — seriously three to seven pages should do it, even ones for patent or other complex cases.
And if you include the following topics, you will have provided your mediator with just about everything he or she needs to get the job done:. This should not be long or detailed; just enough to introduce the dispute. Remember, we are simple people…. Where in the process is the case?
What is the status of depositions and other discovery? When is trial? Who said what and what was the response? A little more introspection would be nice. This is generally the most valuable to your erstwhile mediator…the hardest to discern for the advocate, perhaps, but the most valuable nonetheless. Again, this can be done in 5 pages. Plus, if we are doing our jobs well, we will have had pre-mediation conference calls with each side, so we can delve into some of these topics in more detail if they seem particularly pertinent.
Confidential or not? I know this is your next question. Should you share your brief with the opposing party, or submit it to the mediator confidentially? Items 5 and 6 above in particular are ripe for confidential submission to the mediator.Re: Ron Vanderbilt v.
Kevin Henderson Case No. The numbered paragraphs below correspond to the like-numbered paragraphs of your exemplary form for mediation:. As a result of the accident the Plaintiff suffered from a crush injury to both of his legs; a fractured head of the left fibula; deep abrasions, swelling and bruising to both legs and knees; numbness in both feet and legs below the knees; right ankle pain; suffered from septic arthrosis; an anterior cruciate ligament tear; insertion of a pain pump and the explosion of the pain pump; osteofibrosis; scarring from arthroscopic surgeries; Septic arthritis of the left knee; permanent deformity of the fibula at the junction of the head; loss of movement in the left knee; popping in his left knee; permanent pain in the left knee; loss of strength and mobility; inability to kneel for extended periods of time as his job requires; inability to walk for long distances and inability to run.
Very truly yours, Ronald V. Miller, Jr. Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.
Home Our Team Ronald V. Miller Jr. Laura G. Zois Rodney M. Gaston Justin P. Zuber Lisa A. Search Search Search. Plaintiff Attorney Legal Information Center. Accident Claim Mediators. Sample Mediation Statement. Contact Us Free Consultation View More.
Submit a Law Firm Client Review. Justia Law Firm Website Design.Skip to content. Few commercial litigation cases proceed to trial—the risk of leaving the fate of a case to a group of citizens who did not volunteer to decide your case is just too great. Accordingly, mediation is one of the most critical points in a case, and one of the key moments for a lawyer to achieve success in a commercial litigation matter.
A good confidential mediation statement can be a roadmap to help the mediator help you obtain a successful result. Make the mediation statement your roadmap to a successful settlement. This is your chance to get the mediator focused on how you think she can help you resolve the case.
Be brief, be specific and be strategic to get the mediator focused and ready in advance of the session to help resolve the case. Mark A. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
The views expressed in this article are those of the author s and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer s of the author s.
Close Search Submit Clear. Here are five tips to for a more effective confidential mediation statement: Be upfront. Your first paragraph should tell the mediator who you represent, who the opponent is, summarize the claims and explain what is at stake.
This should be short and to the point. This suggestion may seem obvious, but too many lawyers start their statement with multiple paragraphs of background facts without giving a brief summary up front about who the parties are and what the case is about.
The mediator is then left to sift through pages of facts and wonder why they matter. Start with a summary of who the parties are and what is at issue before getting into the facts and the details of the claims.
Provide a concise summary of the facts and claims. The next section should provide details to help the mediator quickly learn the key facts and how they relate to what is at issue. No mediator will know the facts as well as the lawyers, nor do they need to. The mediator needs to understand the basic facts and background about the parties to develop strategies to help the parties resolve the case.
The mediator will not have the patience or need to read an appellate brief. Avoid prose but use headings and bullet points to organize the section, and to summarize the claims, defenses and background about the parties. This style makes it much easier for the mediator to quickly get the key information.
Using the same format, you should also include a summary of the posture of the case and describe the status of discovery and key dates such as summary judgment hearings or trial. Summarize prior settlement discussions. It is important for the mediator to know the history of efforts to resolve the case. This section should be specific as to all demands and offers, including details that affected the prior discussions, such as key rulings or depositions that occurred before or after a demand or offer was made.
If no settlement discussions have occurred, explain why. This information will help the mediator craft a strategy in advance of the mediation based on prior efforts.
Identify strengths and weaknesses. This is a critical component of a mediation summary. A good lawyer will not only focus on the strengths of her case but will also recognize weaknesses, whether in facts or law. Often a client has tunnel vision and sees a case from an emotional or narrow point of view and even his own lawyer cannot help him see the other side.
A mediator can help a lawyer convince both an opponent and even her own client that weaknesses exist and compromise may be necessary. In a confidential mediation statement, it is helpful to include factual and legal weaknesses to allow the mediator to begin developing a strategy to help both sides compromise.Mediation: What it is and how to teach it