Benjamin N.

Cardozo School of Law · Yeshiva University

Jacob Burns Institute for Advanced Legal Studies
October 19, 2017
Faculty Research Paper No. 529

First Impressions: Drafting Effective Mediation Statements

Forthcoming
22 LEWIS & CLARK L. REV. _____ (2018)

Donna Erez-Navot Brian Farkas

Visiting Assistant Clinical Professor Adjunct Professor of Law
Cardozo Law School Cardozo Law School
55 Fifth Avenue 55 Fifth Avenue
New York, NY 10003 New York, NY 10003
212-790-0873 bdfarkas@gmail.com
donna.ereznavot@yu.edu

This paper can be downloaded without charge from the

Social Science Research Network Electronic Paper Collection

Electronic copy available at: https://ssrn.com/abstract=3056057

 First Impressions: Drafting Effective Mediation Statements

Donna Erez Navot1 & Brian Farkas2

In civil disputes, mediators often encourage advocates to submit pre-

mediation statements. These narratives are meant to educate the mediator
on the most pressing factual and legal disputes between the parties before
the session. Yet litigators have little guidance on drafting such statements.
Unlike many legal documents – pleadings, motions, and settlement
agreements – there are no standard templates or specific requirements on
their form or substance. Neither law schools nor law firms provide much
training on drafting pre-mediation statements, which are considered a
fairly niche genre of legal writing. Indeed, mediators themselves, as well
as administering organizations, often provide little direction to advocates.
Now that mediation has become firmly embedded into our litigation
culture, it is time for litigators to embrace some concrete “best practices.”
Drawing on new empirical survey data and interviews with experienced
mediators, as well as case law and statutes regarding disclosure, this
Article proposes guidelines for litigators seeking to draft effective pre-
mediation statements that will be most helpful to the mediator, and
ultimately, to their clients.

Table of Contents
I. Introduction ............................................................................................................... 1
II. The Law on Disclosure of Pre-Mediation Statements ........................................... 3
III. Empirical Data and Survey Results ........................................................................ 7
A. Survey Participants............................................................................................... 7
B. Formatting Preferences ........................................................................................ 8
C. Substantive Preferences...................................................................................... 10
IV. Best Practices in Drafting Mediation Statements ............................................ 11
A. Issues to Consider Before Drafting ................................................................... 12
B. Format, Tone and Mechanics of Pre-Mediation Statements .......................... 14
C. Five Topics to Include in Shared Submissions ................................................. 17
D. Five Topics to Include in Confidential Submissions ........................................ 19
V. Conclusion ............................................................................................................... 22

I. Introduction

1
Visiting Assistant Clinical Professor, Cardozo School of Law; Interim Director, Cardozo Mediation
Clinic.
2
Attorney, Goetz Fitzpatrick LLP; Adjunct Professor of Law, Cardozo School of Law.

Electronic copy available at: https://ssrn.com/abstract=3056057

 Mediation statements are a squirrely genre of legal writing. Are they advocacy
documents meant to persuade the mediator of the righteousness of your client’s position?
Are they confidential confessionals of wrongdoing? Are they opportunities to suggest
palatable settlement options? Or are they merely tools to warn the mediator of the
cacophony and chaos that she will soon face?
These questions have no hard-and-fast answers. Many law school and law firm
training programs barely bother to ask them, much less answer them. First-year legal
writing programs largely focus their time on appellate brief writing, along with
occasional demand letters.3 Mediation statements are relatively niche, perhaps too niche
for an introductory legal writing course. Law firms, which often have elaborate templates
for motions and contracts, rarely offer formal instructions to associates on drafting
mediation statements.4 More often, young lawyers take their direction from partners on
the shape, tone, and manner of such statements.
Yet mediation has become a firm pillar of our litigation culture.5 Courts
increasingly mandate mediation in cases ranging from family disputes to complex
commercial matters.6 Parties themselves, better educated than ever about process choice,
often request the opportunity to resolve conflicts before the expensive and time-
consuming discovery process begins. The increasing popularity of commercial mediation
– and thus the increasing use of formal pre-session submissions – suggests that the time
has come to develop a set of best practices.
There has been surprisingly little academic research on the qualities of an
effective pre-mediation submission. What do mediators actually want to read before a
session? Are they mostly interested in an education about the facts underlying the
dispute, so that time can be saved on “background” when the joint sessions begin? Or do
mediators mostly want law, so that they enter the joint session with a firm understanding
of the strengths and weaknesses of each side’s potential dispositive motions? Should

3
Tonya Kowalski, Toward A Pedagogy for Teaching Legal Writing in Law School Clinics, 17 CLINICAL L.
REV. 285 (2010) (discussing the limits of the first-year writing curriculum and suggesting that clinics can
narrow the skills gap by exposing students to more genres of legal writing); Alexa Z. Chew, Citation
Literacy, 70 ARK. L. REV. __ (forthcoming, 2018) available at
http://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=1000&context=working_papers (noting the
emphasis in first-year writing courses on “legal documents like memoranda and briefs” and proper citation
formatting).
4
Law firm training programs expanded substantially during the 1980s and 1990s, hiring professionals to
teach new associates “the essentials of the firm’s practice.” Wallace J. Mlyniec, Lawyering Practice:
Uncovering Unconscious Influences Before Rather Than After Errors Occur, 51 NEW ENG. L. REV. 81, 85
(2016). There is little research or public information about the contents of those training programs, but we
are unable to find any examples of a training session specifically on pre-mediation advocacy. Moreover,
after the Great Recession of 2008, law firms and clients have been far less willing to “pay for on-the-job
training,” cutting back on such training programs. Robert J. Condlin, “Practice Ready Graduates”: A
Millennialist Fantasy, 31 TOURO L. REV. 75, 95 (2014). Consequently, it is a safe assumption that the vast
majority of litigation firms offer little or no structured training on pre-mediation statements.
5
Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State
Courts, 1 J. EMPIRICAL LEGAL STUD. 459 (2004) (noting that the percentage of federal civil cases that were
resolved by trial fell from 11.5% in 1962 to 1.8% in 2002).
6
Dorcas Quek, Mandatory Mediation: An Oxymoron? Examining the Feasibility of Implementing A Court-
Mandated Mediation Program, 11 CARDOZO J. CONFLICT RESOL. 479 (2010) (surveying the rise of
mandatory mediation legislation and court rules both domestically and internationally).

Electronic copy available at: https://ssrn.com/abstract=3056057

counsel include initial settlement positions? Or should they include bottom lines? Should
mediation statements be exchanged among parties, or kept confidential?
And then there are more quotidian questions: Should a mediation statement be
formatted as a letter (single-spaced and conversational) or as a memorandum of law
(double-spaced with topic headers, a table or authorities, and a more formal tone)?
Should exhibits be included? Should pleadings be attached?
The answers to these questions are, of course, highly dependent on the facts of an
individual case.7 But within the broad universe of options, litigators should have a set of
guidelines informed by the general preferences of the mediation community. This Article
offers empirical data from a comprehensive survey of experienced mediators and
litigators. We suggest concrete areas of consensus, and also propose a series of critical
topics for lawyers to consider before they begin writing. Taken together, this Article
offers a set of best practices for advocates in drafting effective mediation statements.

II. The Law on Disclosure of Pre-Mediation Statements

The specter of discovery hangs over this entire article. Before writing the first
word of pre-mediation statements, a savvy lawyer must consider the possibility that this
statement might be used as a weapon. Disclosure is particularly worrisome if your
client’s statement will offer an apology, admission, concession, or offer of settlement. If
the mediation fails, could this document ever find its way into court?8 Could it be used in
a subsequent litigation or arbitration against your client’s interests, even if this particular
case settles?9 Could it be the subject of a non-party subpoena?10 Could it ever be made
public and harm your client’s reputation?
The short answer is that pre-mediation statements will usually be shielded from
disclosure by state and/or federal law. Each jurisdiction has its own laws on disclosure.
As a general rule, offers of settlement are not admissible into evidence.11 Fed. R. Evid.
408 provides:

(a) Evidence of the following is not admissible – on behalf of any party –

either to prove or disprove the validity or amount of a disputed claim or to
impeach by a prior inconsistent statement or a contradiction:

7
Indeed, the ability of the mediation process to conform to individual disputes is one of the hallmarks of
mediation. See generally, Thomas J. Stipanowich, Living the Dream of ADR: Reflections on Four Decades
of the Quiet Revolution in Dispute Resolution, 18 CARDOZO J. CONFLICT RESOL. 513 (2017) (noting the
ability of parties to customize alternative dispute resolution processes compared with the rigidity of
litigation).
8
See, e.g., Joachim v. Jackson, No. A-4818-12T1, 2014 WL 4745547 (N.J. Super. Ct. App. Div., 2014)
(allowing admission of confidential chat logs “to prove the terms and intent of the parties' agreement”).
9
See, e.g., United States v. Colon Ledee, 967 F. Supp. 2d 516 (D.P.R. 2013) (Evidence of settlement
agreement between former bankruptcy debtor and the United States Trustee, as settlement between debtor
and government actor, was admissible in subsequent prosecution of debtor for bankruptcy fraud).
10
See, e.g., Sheldone v. Pennsylvania Turnpike Comm’n, 104 F. Supp. 2d 511 (W.D. Pa. 2000) (plaintiffs
sought discovery regarding mediation held on potential claims); Folb v. Motion Picture Indus. Pension &
Health Plans, 16 F. Supp. 2d 1164 (C.D. Cal. 1998), aff’d, 216 F.3d 1082 (9th Cir. 2000) (plaintiff sought
discovery regarding mediation on claims that were never filed).
11
McCormick on Evidence § 266 (6th ed.) (noting that “general agreement exists that the offer of
compromise is not admissible on the issue of liability”).

3
 (1) furnishing, promising, or offering – or accepting, promising to accept,
or offering to accept – a valuable consideration in compromising or
attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the
claim – except when offered in a criminal case and when the negotiations
related to a claim by a public office in the exercise of its regulatory,
investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for another purpose,
such as proving a witness’s bias or prejudice, negating a contention of
undue delay, or proving an effort to obstruct a criminal investigation or
prosecution.12

The language of (a)(1) essentially prohibits the use of settlement offers or

agreements as evidence of liability. The language of (a)(2) seems to forbid any “conduct”
or “statement[s]” surrounding that eventual offer of settlement. A strict reading of Fed. R.
Evid. 408 suggests that pre-mediation statements, including any settlement offers made
therein, are shielded from admissibility.13
But like nearly every rule of evidence, there are exceptions. Part (b) notes that the
court “may admit this evidence for another purpose, such as proving a witness’s bias or
prejudice, [or] negating a contention of undue delay….” A lawyer may argue that a pre-
mediation statement is fair game, even if it would need to be at least partially redacted.14
Beyond the Federal Rules of Evidence, litigators should be aware of state-specific
laws on the discoverability and confidentiality of pre-mediation statements.15 The
Uniform Mediation Act (“UMA”) has particularly explicit language on this topic. The
UMA – a model law promulgated by the National Conference of Commissioners on
Uniform State Laws – has been enacted in 13 jurisdictions since it was drafted in 2001.16

12
The Advisory Committee Notes to Fed. R. Evid. 408 note that the rule is premised on two rationales.
First, the evidence is irrelevant, “since the offer [of settlement] may be motivated by a desire for peace
rather than from any concession of weakness of position.” And second, the rule supports “the public policy
favoring the compromise and settlement of disputes.”
13
See generally, Confidentiality, Privilege and Rule 408: The Protection of Mediation Proceedings in
Federal Court, 60 LA. L. REV. 91 (1999) (exploring local rules in federal district courts protecting
communications during mediation from admissibility, and examining whether a broader mediation
privilege can rest on Fed. R. Evid. 408, which excludes offers of settlement and compromise).
14
See, e.g., Westchester Specialty Ins. Services, Inc. v. U.S. Fire Ins. Co., 119 F.3d 1505, 1512 (11th
Cir.1997) (“Settlement agreements ‘[may not be] offered for the impermissible purpose of proving the
invalidity of a claim or its amount, but [may be offered] for the permissible purpose of resolving a factual
dispute about the meaning of the settlement agreements’ terms”); Collier v. Cobra Power Corp., No. 3:14-
1759, 2015 WL 1600774 (M.D. Tenn. 2015) (“Rule 408 does not completely prohibit the admission of
compromise offers and negotiations”); Basha v. Mitsubishi Motor Credit of Am., Inc., 336 F.3d 451 (5th Cir.
2003) (Settlement-related letters between parties were admissible where not used to establish liability, but,
rather, to interpret parties' settlement agreement).
15
See, Ellen E. Deason, The Quest for Uniformity in Mediation Confidentiality: Foolish Consistency or
Crucial Predictability?, 85 MARQ. L. REV. 79 (2001) (noting the wide disparity in state laws on mediation
confidentiality and privilege and arguing that “[b]y adopting the [UMA], the states would greatly advance
predictability through a coordinated approach to confidentiality”).
16
These jurisdictions include the District of Columbia, Hawaii, Idaho, Illinois, Iowa, Nebraska, New
Jersey, Ohio, South Dakota, Utah, Vermont, and Washington. In 2017, Massachusetts and New York also
introduced legislation to enact a version of the UMA. “Legislative Fact Sheet – Mediation Act,” Uniform
Law Commission,” available at

4
Familiarity with the UMA will be instructive for understanding the way that an
increasing number of jurisdictions treat pre-mediation statements when their production
is sought in discovery.
Multiple provisions of the UMA aim to ensure the confidentiality of the mediation
process, specifically protecting mediation communications. Section 2(2) of the UMA
defines a “mediation communication” as a “statement, whether oral or in a record or
verbal or nonverbal, that occurs during a mediation or is made for purposes of
considering, conducting, participating in, initiating, continuing, or reconvening a
mediation or retaining a mediator.”17 The drafter’s comments clarify that this section
includes pre-mediation submissions:

[T]his definition would also include mediation “briefs” and other reports
that are prepared by the parties for the mediator. Whether the document is
prepared for the mediation is a crucial issue. For example, a tax return
brought to a divorce mediation would not be a “mediation
communication” because it was not a “statement made as part of the
mediation,” even though it 5 may have been used extensively in the
mediation. However, a note written on the tax return to clarify a point for
other participants would be a mediation communication. Similarly, a
memorandum specifically prepared for the mediation by the party or the
party’s representative explaining the rationale behind certain positions
taken on the tax return would be a “mediation communication.”
Documents prepared for the mediation by expert witnesses attending the
mediation would also be covered by this definition.

With that broad definition of “mediation communications” in mind, Section 4 of

the UMA provides, in relevant part:

(a) [A] mediation communication is privileged… and is not subject to discovery or

admissible in evidence in a proceeding18 unless waived....
(b) In a proceeding, the following privileges apply:
(1) A mediation party may refuse to disclose, and may prevent any other person
from disclosing, a mediation communication.
(2) A mediator may refuse to disclose a mediation communication, and may
prevent any other person from disclosing a mediation communication of the
mediator.
(3) A nonparty participant may refuse to disclose, and may prevent any other
person from disclosing, a mediation communication of the nonparty
participant.

http://www.uniformlaws.org/LegislativeFactSheet.aspx?title=Mediation%20Act (last visited Aug. 19,

2017).
17
UNIF. MEDIATION ACT § 2(2).
18
Note that Section 2(7) defines a proceeding broadly as “a judicial, administrative, arbitral, or other
adjudicative process, including related pre-hearing and post-hearing motions, conferences, and discovery.”

5
 (c) Evidence or information that is otherwise admissible or subject to discovery does
not become inadmissible or protected from discovery solely by reason of its
disclosure or use in a mediation.19

The broad privilege20 granted for mediation communications by Section 4(b) not
only allows a person to refuse to disclose certain information in a proceeding, but also to
prevent others from disclosing that information. In other words, not only could a party
refuse to respond to a document subpoena requesting production of a pre-mediation
statement, but they could also object to the other party attempting to disclose it.
Moreover, Section 8 of the UMA notes that “mediation communications are
confidential to the extent agreed by the parties or provided by other law or rule of this
State.” In other words, if the parties enter into a confidentiality agreement prior to the
mediation, that agreement will bind the parties.21 As the drafter’s comments to this
section note, the goal is to prevent disclosure to individuals even outside of legal
proceedings, such as “family members, friends, business associates and the general
public.”
Even jurisdictions that have not enacted the UMA have similar prohibitions on
disclosure and admissibility of mediation materials. To give just a few examples:
Alaska’s probate courts have a court-annexed mediation program, and its rules note that
“An interested person's mediation brief may not be disclosed to anyone without the
person's consent and is not admissible in evidence.”22 Similarly, the Delaware Court of
Chancery – one of the country’s preeminent courts for corporate disputes – takes the
confidentiality of the mediation process seriously. Its Rules provide:

(4) All memoranda, work product, and other materials contained in the files of the
mediator are confidential. All communications made in or in connection with
the mediation that relate to the controversy being mediated, whether with the
mediator or a party during the mediation, are confidential.
(5) Information received from other parties during the mediation that the recipient
does not already have or that is not public shall be used only for the mediation
and not for any other purpose.
(6) The confidentiality of the mediation can be waived only by a written
agreement signed by all parties and the mediator.23

As for federal district courts, the Alternative Dispute Resolution Act of 1998
requires that each court enact a local rule to provide “for the confidentiality of the
alternative dispute resolution processes and to prohibit disclosure of confidential dispute

19
UNIF. MEDIATION ACT § 2(2).
20
See, supra note 6.
21
UNIF. MEDIATION ACT § 8.
22
A.K. R. PROB. Rule 4.5.
23
Del. Ch. Ct. R. 174(g)(2)-(5). Delaware’s Rules even mandate that the “Register in Chancery will not
include any mediation materials as part of the public docketing system.”

6
resolution communications.”24 The resulting rules vary considerably from district to
district, just as do state court rules addressing confidentiality.
The fact that so many jurisdictions follow the UMA, or have similar statutory or
common law rules, should give comfort to litigators. However, a certain level of risk
remains.25 Evidentiary exclusions like the ones listed above merely protect the admission
of communications – like a pre-mediation statement – into evidence to prove or disprove
liability. But not all jurisdictions offer a broader “mediation privilege” like the one
contained in the UMA. A privilege “applies regardless of the purpose for disclosing,
while the evidentiary exclusion makes evidence inadmissible only when offered to prove
the validity or amount of the claim.”
A savvy litigator must know the legal frameworks within which she is working.26
As the above law makes clear, pre-mediation statements are almost always immune from
admissibility within the same proceeding, and are usually immune in subsequent
proceedings. However, such statements are at risk of being used for a purpose other than
proof of liability. They are also at risk of non-party subpoenas in unrelated proceedings.
A strict confidentiality agreement will give additional security that the documents will
not be released to competitors or the public.27
With these broad parameters and cautions in mind, we now turn our attention to
best practices in drafting pre-mediation statements. We begin with the results of our
survey to leading mediators about their preferences in reviewing such statements.

III. Empirical Data and Survey Results

Empirical research in mediation is always challenging. Records are confidential,

and each mediator runs sessions in his or her own style. There is certainly no mandatory
reporting by litigators of their practices in mediator, nor reporting by mediators of their
preferences. Given that, it is difficult to comprehensively study the ways that litigators
craft mediation statements, or the characteristics of statements that mediators prefer to
read. However, using a focused survey, we have attempted to take the pulse of leading
practitioners about the qualities that make pre-mediation submissions most effective.

A. Survey Participants

To research these issues, we contacted four groups with an online survey: (i)
Members of the NYC-DR List-Serve28; (ii) Members of the Dispute Resolution Legal

24
28 U.S.C.A. § 652(d) (“each district court shall, by local rule adopted under section 2071(a), provide for
the confidentiality of the alternative dispute resolution processes and to prohibit disclosure of confidential
dispute resolution communications”).
25
Sarah R. Cole, et al., MEDIATION: LAW, POLICY AND PRACTICE, § 8:6, “Confidentiality.”
26
The law of the jurisdiction where litigation occurs – rather than the location of the mediation – will “most
likely control the applicable privilege or scope of the evidentiary exclusion.” Sarah R. Cole, et al.,
MEDIATION: LAW, POLICY AND PRACTICE, § 8:6, “Confidentiality.”
27
In an abundance of caution, attorneys may prefer to reveal certain facts or positions to the mediator
solely in pre-mediation phone conversations, rather than written statements. See Section IV, infra.
28
The NYC-DR List-Serve, hosted by the City University of New York Dispute Resolution Consortium at
John Jay College of Criminal Justice, aims to connect professionals in dispute and conflict resolution,
peacemaking, facilitation, restorative justice, violence prevention, social justice and related fields in the

7
Educators List-Serve29; (iii) Mediators for the U.S. District Court for the Southern
District of New York30; and (iv) Selected mediators and litigators active in the American
Bar Association’s (“ABA”) Section of Dispute Resolution. These survey results are not
scientific, but they do capture the attitudes of 180 leading practitioners and scholars.
Of the 180 survey participants, 43.33% stated that they spend more than 70% of
their practice as the mediator. Only 4.44% stated that they spend more than 70% of their
time in mediation as an advocate, which makes sense, given the neutral-heavy groups that
were surveyed. About 16.67% split their practice roughly equally between serving as the
mediator and the advocate in mediation, with the remainder falling elsewhere on the
continuum. As for practice areas, almost all participants are involved in either
commercial mediation (63.33%) or labor/employment mediation (20.78%), with the
remainder focusing on other specialized areas such as family, consumer, or intellectual
property mediation.
Overall, the 180 survey participants represent an experienced cohort of
professionals across a broad range of practice areas with expertise on both sides of the
table – that is, both the mediator and the lawyer-advocate in mediation. There is broad
consensus among this group on the overall utility of pre-mediation statements: 66.67% of
respondents “always” require pre-mediation statements from the parties, and an
additional 14.44% “usually” require them. Only 3.33% “rarely” or “never” require them,
with the remainder doing so about half the time.

B. Formatting Preferences

There is an overwhelming degree of consensus on the appropriate format for

mediation statements. A resounding 62.22% of respondents prefer mediation statements
to be formatted like a letter, written on firm letterhead and single-spaced. Only 5.56% of
respondents prefer that mediation statements be formatted like a legal brief (double-
spaced with a table of contents and authorities). About 32.22% recommend a format with
specific topics that respondents explained in narrative comments after the survey question
– though even these special forms seem to be formatted more as letters than briefs.

New York City metropolitan area. See, THE CITY UNIVERSITY OF NEW YORK DISPUTE RESOLUTION
CENTER AT JOHN JAY COLLEGE, available at http://johnjayresearch.org/cdrc/ (last visited Aug. 19, 2017).
29
The Dispute Resolution Legal Educators List-Serve (DRLE) is primarily targeted at law school
professors, both clinical and non-clinical. We surveyed this group knowing that many professors serve as
active mediators themselves, and asked that only those individuals respond. See, DISPUTE RESOLUTION
LISTSERV, available at http://law.missouri.edu/drle/dispute-resolution-listserv/ (last visited Aug. 19, 2017).
30
The U.S. District Court for the Southern District of New York maintains an active roster of experienced
mediators, competitively selected from attorneys in the community, to mediate cases assigned by the
Mediation Office. See, SDNY MEDIATION/ADR, available at http://www.nysd.uscourts.gov/mediation (last
visited Aug. 19, 2017).

8
 Letter Format
Legal Brief Format
Other Format

There is also broad agreement on brevity. A full 46.67% of respondents prefer a

maximum page count of ten single-spaced pages; 33.33% would slash that maximum to
five single-spaced pages. Only 4.44% would allow the limit to go to fifteen pages. The
remainder of respondents set individual limitations depending on the case, though again,
the narrative comments suggest that most prefer statements under ten pages.

Ten Page
Maximum
Five Page
Maximum
Fifteen Page
Maximum
No Page
Limit/Other

Litigators may wonder whether mediators wish to see copies of the pleadings, if a
lawsuit is pending. A significant percentage – 42.22% – would like copies of the
pleadings attached to the pre-mediation statement. But 8.89% do not, and about half of
respondents indicated that their preference varies from once case to the next. Many of the
comments on this question showed strong disagreement between those who believe that
pleadings are useful for framing the issues, and those who believe that pleadings
represent an unwelcome intrusion of litigation posturing into an alternative process.
There is greater consensus when it comes to including other non-pleading exhibits
with the pre-mediation submission. A resounding 82.22% of respondents “always” or
“usually” want to see “relevant exhibits” attached to the pre-mediation submission. The
most obvious example of a “relevant exhibit” would be a contract that is central to the

9
parties’ dispute, such as a non-competition agreement or licensing agreement. Only
3.33% of respondents never want to see exhibits prior to a mediation session, with the
remainder of respondents indicating that it depends on the facts of the particular case. In
the comments to this question, many called for brevity in exhibit submissions,
discouraging litigators from including every single document that they would need to
substantiate their complaint at trial, and instead including only those documents most
likely to be discussed during the mediation session. Several respondents indicated that
advocates can bring a broader collection of documents to the mediation session, but need
not burden the mediator with such materials beforehand.

C. Substantive Preferences

What should actually go into a mediation statement? Here, too, there is broad
consensus among the respondents.
Perhaps the most unanimous result of the survey related to the tone of the
statement. A resounding 50% of respondents said that a pre-mediation statement should
be “significantly less formal than a legal brief” and another 44.44% said that it should be
at least “slightly less formal than a legal brief.” Only 5.56% prefer mediation statements
that are equally formal to legal briefs. This shows strong agreement that advocates should
hold back on formality, both with respect to vocabulary (colloquialisms over jargon) and
substance (common-sense statements over positional bluster).
A strong majority of respondents, 63.33%, ask advocates to include a specific
statement regarding their clients’ settlement position in the pre-mediation statement.
Another 20% prefer to see settlement ranges – that is, a range as to acceptable dollars to
pay or receive. Only 7.78% prefer that no settlement position or range is included.
Generally, this means that the great majority of mediators will want to have some
concrete sense of a party’s settlement position before the session begins. In the
comments, several respondents indicated that they encourage parties to submit a
confidential (ex parte) statement regarding settlement position beyond their “standard”
pre-mediation statement, which might be shared.

Include Specific
Settlement Position
Include Settlement
Range
Include No
Settlement Position
Other Preference
Depending on Facts

10
 Despite a general preference for brevity and relative informality, most mediators
do still want to see some legal citations. A full 58.89% of respondents stated that they
want to see legal citations that the parties believe have a “dispositive effect” on the
claims. An example of such a legal citation would be, for example, a statute providing for
strict liability, or a controlling statute of limitations period. Another 31.11% of
respondents want an even broader inclusion of legal citation to “all relevant legal
authority that could affect the outcome of the dispute.” The remaining respondents
indicated that they either did not want to see any legal citations in a pre-mediation
statement, or wrote comments indicating that they asked for legal briefing on a case-by-
case basis when appropriate.

IV. Best Practices in Drafting Mediation Statements

To generate some workable “best practices,” we combine these survey results

with numerous interviews with leading mediators. We also review and synthesize the
existing literature on pre-mediation statements, authored mainly by practitioners.
Additional scattered guidance can be gleaned from providers like the American
Arbitration Association (“AAA”)31, JAMS and NAM, as well as some individual
mediators, who send specific instructions about what they would like to see in the pre-
mediation statements.32 Some issues are best considered before attorneys begin to draft,
while others have more to do with the practicalities of writing.

31
The AAA mediator training materials only briefly mention pre-mediation statements. The AAA’s
recommendations are based on a report of the American Bar Association (“ABA”) Section of Dispute
Resolution, entitled Task Force on Improving the Quality of Mediation, Final Report, April 2006–February
2008, available at http://www.abanet.org/dispute/documents/FinalTaskForceMediation.pdf (last visited
Aug. 19, 2017). In its training manual, the AAA recommends that mediators consider the submissions to
request from parties, and also consider whether those submissions should remain confidential or be shared.
But neither the AAA nor other administering organizations provide much guidance beyond that.
32
For example, some mediators send short instructional memos to parties that explain the procedural
aspects of the mediation, such as pre-mediation telephone calls or statements. For example, Marie Stanton,
a mediator in Wisconsin with Hurley, Burish & Stanton, S.C., recommends that the parties send her a
confidential pre-mediation statement at least 10 days before the mediation. See Telephone Interview with
Marie Stanton, May 10, 2017 (notes on file with authors).
In court-annexed mediations, it is critical for advocates to read the local rules. Court annexed
program rules about pre-mediation statements vary significantly from jurisdiction to jurisdiction. Some
jurisdictions are silent about whether the parties should prepare pre-mediation statements, or whether such
statements should be shared with the other side. Others require it to be a shared submission and others
require that it be confidential with the mediator. See Spencer Punnett, REPRESENTING CLIENTS IN
MEDIATION: A GUIDE TO OPTIMAL RESULTS BASED ON INSIGHTS FROM COUNSEL, MEDIATORS, AND
PROGRAM ADMINISTRATORS, 131 (Am. Bar Ass’n, 2016). The District of Columbia Superior Court’s
Multi-Door Dispute Resolution Division requires a confidential pre-mediation statement to be submitted.
See Gary P. Poon, THE CORPORATE COUNSEL’S GUIDE TO MEDIATION, 68 (Am. Bar Ass’n, 2010). The
U.S. District Court for the Eastern District of New York’s local rules spend one paragraph explaining their
protocol for pre-mediation statements, which include submitting statements at least 14 days in advance and
not to exceed 10 pages. The local rules of the U.S. District Court for the Southern District of New York are
a bit more specific and include some information about what should be included in the pre-mediation
statement and allow the mediator and parties to choose if it should be confidential or shared. It is generally
wise for attorneys to ask the mediator’s preferences about length and substance of a pre-mediation
statement. See Harold L. Abramson, MEDIATION REPRESENTATION, 2nd ed., 271-272 (National Institute for
Trial Advocacy, 2010). It is generally wise for advocates to proactively act the mediator about his or her

11
 A. Issues to Consider Before Drafting

Before you begin writing a pre-mediation statement, there are number of issues to
consider. Certain issues are internal to you and your client, while others should be
discussed with the mediator and opposing counsel.

1. Budget Implications

For better or worse, the size of a case and the ability of the parties to cover legal
fees is an important factor in considering the nature and extent of pre-mediation
submissions. While mediation can reduce legal costs by ending expensive litigation, not
all clients can afford robust mediation statements. Advocates should avoid statements
whose costs are disproportionate to the amount of money in dispute.
Even a mediation statement that merely summarizes the disputed and undisputed
facts might take an associate four or five hours to draft, and an additional hour for a
partner to review. In dollar terms, this could mean $1,000-$2,000, assuming hourly rates
of $200-$400. (These hourly rates are conservative for a law firm in a major market). If
the statement also includes legal research, legal analysis, or detailed examination of
exhibits, attorneys might spend ten or more hours preparing the document at a cost of
$2,000-$4,000. If the entire dispute is only $10,000, a pre-mediation statement might not
be worthwhile. A client’s financial constraints might be one reason to hold a 30-60
minute telephone call with the mediator in lieu of a formal written statement.33
In general, advocates should fully advise their clients of the costs of the mediation
process. This includes the mediator’s fees and the fees of the administering organization
(e.g., AAA, JAMS, NAM, etc.), as well as the legal fees related to drafting pre-mediation
statements, conducting pre-mediation telephone calls, and holding pre-mediation
meetings with witnesses. It is useful for clients to understand the costs – which also
creates a certain amount of buy-in and a sense of ownership over the process.34

2. Clarifying Expectations on Format and Content

In commercial mediation, counsel will often have an initial joint pre-hearing

telephone conversation with the mediator shortly after the mediator is appointed. During
that call, the mediator (or the parties) may discuss the expectation for a pre-mediation
statement.35 A surprising number of mediators will not give specifics about expectations
for the mediation statement, beyond setting a due date.

preferences. See John W. Cooley, MEDIATION ADVOCACY, 2nd ed., 128 (National Institute of Trial
Advocacy, 2002).
33
Punnet, supra note __ at 158.
34
Andrew K. Niebler, Getting the Most Out of Mediation: Toward A Theory of Optimal Compensation for
Mediators, 4 HARV. NEGOT. L. REV. 167, 169 (1999) (noting that “[p]arties… need to have a more
sophisticated understanding of… the mediator’s fee arrangement” and the costs involved in the process).
35
Importantly, some mediators may not want any statements at all. See John W. Cooley, Mediation
Advocacy 128 (2d ed. 2002) (noting that some mediators “do not want any pre-mediation submissions,
believing that such submissions may have a tendency to bias them one way or the other before the

12
 During the call, advocates should try to achieve clarity on the format and content
that the mediator seeks. How long should the statement be? What format would the
mediator prefer? What exhibits, if any, would the mediator like to have included? Will
the statements be confidential or shared? To what extent does the mediator want statutes,
case law, or other legal argument to be included in the statement?36
Answering these questions during the pre-hearing telephone call will remove
uncertainty from the drafting process. It will also avoid a situation in which one party
writes a paragraph and the other writes a novel.

3. Confidentiality or Mutual Exchange

Perhaps the most significant strategic decision that needs to be considered before
advocates put pen to paper is the question of mutual exchange. Should the parties
exchange their pre-mediation statements with one another, or only with the mediator?
The answer to this question will affect the documents’ tone and content.37
On first blush, purely confidential statements seem like a smart way of being
honest with the mediator. You can communicate your client’s fears, weaknesses, and
underlying interests to the mediator.38
However, confidential mediation statements also present both danger and missed
opportunity. Opportunities are missed to truly understand your adversary’s position on
key facts prior to the session. And, relatedly, there is a danger that you will be
sandbagged at the mediation session with novel arguments or facts for which you are
unprepared. Moreover, the other side might include unsupportable or one-sided legal
positions that – without your objection – could convince the mediator that your
arguments are meritless. In many mediations, the exchange of mediation statements is
useful as it facilitates fruitful discussion, provides the parties with an opportunity to
clarify issues, and gives the parties – at least in some cases – a better sense of one

mediation begins.”). Indeed, in our survey results, numerous respondents indicated that pre-mediation
statements are too close to litigation documents, and set the wrong tone for reconciliation.
36
Our survey reveals that surprisingly few mediators provide explicit instructions to parties regarding pre-
mediation statements. Some do, however. Charles M. Newman, a mediator in New York, typically sends
counsel a somewhat detailed memo on his expectations for the statement. That memo reminds the attorneys
not to “treat the [statement] as another annoying court document you have to slave over…. Since I will not
be deciding the case, you just have to inform me, not convince me.” Newman encourages the lawyers to see
the statement as “a good opportunity, sometimes for the first time, for lawyers and clients to sit down
during the litigation and carefully parse out what is most important to the client; what the client’s specific
prioritized goals are; the strengths and weaknesses of both side’s case; and the obstacles to resolution.”
Newman also provides clear page expectations (“four to seven single-spaced pages; more than ten is
usually too long”). We believe that setting these expectations from the start is a commendable practice for
mediators, so that lawyers are not left uncertain – but that is a topic for another article. Telephone Interview
with Charles M. Newman, May 6, 2017 (notes on file with authors).
37
This debate about whether or not to share the pre-mediation statement is illustrated by the many names to
these documents: mediation statement, pre-mediation submission, mediation letter, mediation package and
mediation brief. These terms are used interchangeably, though they mean the same document.
38
Mediators like when lawyers objectively evaluate their case before the mediation. See Galton, supra note
__ at 55. The confidential submission allows this to occur. Most effective confidential pre-mediation
statements are very concise and very candid about the strengths and weaknesses about their case.

13
another’s positions, sometimes for the first time.39 After all, it will ultimately be the
clients who need to shake hands on a settlement; respectful, well-written pre-mediation
statements may go a long way in getting the conversation off on the right foot.
Another reason to avoid confidential pre-mediation statements is that if there is
deep mistrust between the parties, confidentiality may exacerbate the suspicion.40 Each
party will wonder what the other is secretly telling the neutral.
In addition, because your own client must approve a confidential pre-mediation
statement, an attorney may still be limited. If there is information that you want to share
with mediator that is sensitive (for example, the complicated personal relationship
between your client and the other side), consider including this in a pre-mediation
telephone conversation.
Even if sharing is chosen, there may be some benefit to a somewhat guarded
approach.41 Perhaps at least some information should be shared only with the mediator
through a confidential telephone call.

B. Format, Tone and Mechanics of Pre-Mediation Statements

With those preliminary issues settled, you must now begin drafting. While
individual mediators have their own preferences, our survey shows a fairly clear
consensus on the preferred format and tone of mediation statements.

1. Length and Format. A threshold question for any writer is space constraint.
Litigators may be tempted to write a pre-mediation statement as thick as a
summary judgment brief, which often run from 25 to 35 pages.42 Yet our survey
reveals that this is far too long for most pre-mediation statements. Instead, the
great majority of mediators prefer that statements be roughly 5 to 10 single-
spaced pages.43 Moreover, the document should be formatted as a letter – single-
spaced, on firm letterhead, with topic headers where appropriate.44 Tables of
contents and authorities are not necessary.

39
Telephone Interview with Peter Halprin, June 13, 2017 (notes on file with authors). See also, Punnet,
supra note __ at 127. According to Sheldon J. Stark, counsel should encourage the other side to provide a
copy to her client, even giving the other side’s attorney two copies and explicitly stating that the second
copy is for their client. When you come to the mediation, bring three copies with you so that you can give
it to the client, attorney and mediator and there is time during caucus for the client to read your document.
See Stark, supra note __.
40
Punnet, supra note __ at 152 (noting that the reasons for not using confidential statements are similar to
the reasons why mediators will avoid caucuses in cases where mistrust exists).
41
On the other hand, Gary Poon recommends that you may want to “set forth some of the alternative
settlement proposals” that you have come up with and sometimes “it may even be appropriate to reveal to
the mediator your organization’s bottom line.” Poon, supra note __ at 68.
42
While each court and judge varies, many allow for motions reaching 20 pages or more, counting only the
memorandum of law (and not even including any supplemental affidavits or affirmations and the
accompanying exhibits). See, e.g., California Rule 3.1113(d) (allowing up to 20 pages for memoranda of
law in support of a motion); New York State Rule 14(B) (allowing up to 30 pages); Minnesota Rule 115.05
(allowing up to 35 pages).
43
Telephone Interview with Marie Stanton, May 10, 2017 (notes on file with authors).
44
This also refers to the presentation look of the document. According to Sheldon J. Stark, “[a]
professional-looking mediation summary package establishes that the advocate is thoughtful, effective,

14
 2. Tone. Just as mediators do not want the length of a summary judgment motion,
they do not want its tone either.45 Our survey reveals that 50% of respondents
would like the tone to be “significantly less formal than a legal brief” and another
44.44% said that it should be at least “slightly less formal than a legal brief.” The
lack of formality could manifest in two ways. First, it might simply mean
removing unnecessary legal citations, jargon, and Latin phrases that are endemic
to motions. Second, it means a less pugilistic and positional tone. This is
particularly true in a shared mediation statement. According to Professor Hal
Abramson, the pre-mediation statement should present “a balanced view of the
facts and legal case and attach only essential documentary evidence.”46 The tone
of the pre-mediation statement should be less adversarial than a trial brief, though
the range should possibly be different depending on whether it is shared or
confidential. 47 Advocates should convey a powerful message but “without the
type of bombast that will backfire.”48 Even for shared pre-mediation statements,
Canadian mediator Steven Gaon notes, “I would encourage lawyers to set out
their position succinctly and persuasively, but to avoid becoming overly
aggressive or adversarial, which can hamper settlement efforts at mediation. If the
goal is to settle, put forth a strong case but state in your brief that you are prepared
to bargain and you recognize that compromise will be necessary.”49 After all,
what purpose is there in castigating your opponent’s arguments (or personality)
when, ultimately, a successful mediation depends upon both parties shaking
hands? The tone of a pre-mediation statement should reflect the fact that the
process inherently involves both compromise and recognition of the other side’s
validity.

3. Professionalism and Preparedness. Regardless of whether the document is

shared with the other side, the pre-mediation statement is the beginning of your
relationship with the mediator.50 It is the first opportunity to show the mediator
that you are prepared.51 As one mediator cautions, “[s]ome lawyers incorrectly
perceive their role in the mediation is just to show up. Lawyers who labor under
such misimpression will be ill prepared, reduce the chances for a successful
resolution, and unable to participate the process. Preparation and effective
mediation advocacy improves the chances for resolution.”52 It is a clear sign to the

well-prepared, has a firm grasp of the law and facts and is likely to be a formidable opponent if the case
does not settle.” See Stark, supra note __.
45
Galton, supra note __ at 54.
46
Abramson, supra note __ at 273.
47
Punnet, supra note __ at 154.
48
Punnet, supra note __ at 137.
49
Steven Gaon in Tips from Mediators, http://www.advocacyclub.ca/how-to-prepare-a-mediation-
brief.html
50
Abramson, supra note __ at 271. See also, Galton, supra note __ at 56 (noting that the pre-mediation
statement “is your first opportunity to assist and not influence the mediator”).
51
According to John Cooley, “[y]our effectiveness in the mediation session may depend a great deal on the
care you take and the time you devote to the preparation of the written materials you submit of the mediator
in advance of the mediation session.” Cooley, supra note __ at 127.
52
Galton, supra note __ at 54.

15
 mediator that the attorney is not prepared for their mediation if they use the
mediation statement as a vehicle for a “discovery dump” – a huge box of
documents without any annotation for the mediator. Marie Stanton, a leading
mediator in Wisconsin, jokes that the mediation materials should not weigh more
than the mediator. “Preparation is key,” Stanton cautions. “If you want to have a
good likelihood that the case will settle in mediation, you have to be able to see
the landscape.”53 The exchange of mediation statements can also provide a means
for a party to deliver their message directly to the opposing party, as clients are
likely to read such statements before the session.54 According to mediator Walter
Stuart, the shared pre-mediation statement is most important to the other side’s
client then to the mediator and finally to the lawyer on the other side. This is the
reason as to why the shared pre-mediation statement is required in the rules of the
mediation program in the U.S. District Court for the Northern District of
California.55 Gary Friedman and Jack Himmelstein encourage lawyers to share
the memorandum received with the other side and with their own client.56
Consequently, the advocates’ professionalism is critical to establishing credibility
with everyone around the table.

4. Deadline. Many recommend that you send your pre-mediation statement as early
as possible prior to the session. The U.S. District Court for the Eastern District of
New York’s local rules recommends sending the statement to the mediator at least
14 days before the session, while the U.S. District Court for the Southern District
of New York’s local rules require 7 days. Others recommend a minimum of 10
days before the session.57 You may consider sending it much earlier than all these
recommended timelines, especially if the pre-mediation statement needs to be
circulated among several individuals in an organization like a “claims committee”
of a corporate defendant, which may need to meet in advance of the mediation.58
According to mediator J. Anderson Little, in discussing dynamics involved in
mediating personal injury cases: “The plaintiff’s bar typically views medical
records and medical expenses as given in the case. The defense does not. The
defense scrutinizes medical records and medical expenses carefully. Thus,
[defendants] need time to process the information that the plaintiffs provide
through discovery before deciding the value they will give the case. If they don’t
get basic claims information well in advance of the settlement conference, they
will not be able to make informed decisions and negotiation a settlement.”59

53
Punnet, supra note __ at 128 (quoting Daniel Terrell, inside counsel in Louisiana).
54
This exchange not only helps to brief the mediator but also the other side. Telephone Interview with
Peter Halprin, June 13, 2017 (notes on file with authors). See also, Punnet, supra note __ at 127. According
to Sheldon J. Stark, you should encourage the other side to provide a copy to her client, even giving the
other side’s attorney two copies and explicitly stating that the second copy is for their client. When you
come to the mediation, bring three copies with you so that you can give it to the client, attorney and
mediator and there is time during caucus for the client to read your document. See Stark, supra note __.
55
Punnet, supra note __ at 131.
56
Friedman and Himmelstein, 2008, p. 247
57
Marie Stanton confirmation letter and Michael D. Young (JAMS) pre-mediation session steps letter.
58
Punnet, supra note __ at 138.
59
Punnet, supra note __ at 129.

16
 Unlike in litigation, where you may wish to give your opponent as narrow a
timeframe as possible to respond to your papers, mediation requires time for
consideration. There is no benefit to “short serving” your adversary.

5. Exhibits. From our survey sampling, 82.22% of respondents wanted “relevant

exhibits” to be annexed to the pre-mediation statement. 42.22% of respondents
also want the pleadings to be annexed, if a lawsuit is already pending. Generally,
attachments should be limited to critical pieces of evidence, such as the key
employment contract at issue, or the revealing excerpts of documentary evidence
and depositions.60 If you include exhibits, make sure to give annotations and
highlight the important sections especially if they are voluminous.61 According to
Sheldon J. Stark, “[a]ttractive mediation summaries are written using headlines or
section headings in bold font, with frequent references to the attachments. Is the
summary plus attachments extensive? Exhibits are attached using tabs, not a
simple piece of paper with “Exhibit A” typed in the middle. Tabs make it easy
for the reader to turn to the designated document without thumbing through
multiple pages searching for the right one.”62 Lay a breadcrumb trail for the
mediator.

C. Five Topics to Include in Shared Pre-Mediation Statements

We now know that the mediation statement should usually be in the range of five
to fifteen pages. We know that it should adopt a notably less formal tone than a brief. We
also know the types of exhibits that should be included. Now, we must consider the
contents of the statement itself. What should be included, and what should be omitted?
Like other advice in this Article, it is highly case specific. To keep the statement
organized and give the mediator what she needs, we generally recommend the following
five topic headers for shared statements:

1. Summary of Relevant Facts: The bulk of the pre-mediation statement should be

used to tell the story of the case. Despite any phone calls you may have already
had with the mediator, and despite attaching the pleadings to your submission,
you should treat this section as the opportunity to summarize the key facts of the
case. Assume the mediator knows little about the parties. A good factual summary
should answer questions such as: (i) Who are the parties (i.e., their businesses,
locations, etc.)? (ii) What is the nature and length of the parties’ relationship? (iii)
When did the dispute emerge and how was it discovered? (iv) What is the nature
of the dispute? (v) What has happened since the dispute was discovered (e.g.,
attempts to cure)? (vi) What damage has the dispute caused to each party (e.g.,
monetary, non-monetary, etc.)? And (vii) is there an ongoing or future
relationship between these parties? Many litigators make the mistake of going
into too much detail on these points. As our survey shows, this can allow the
mediator to lose sight of the forest through the trees. Tell the story, but only the

60
Abramson, supra note __ at 273.
61
Telephone Interview with Marie Stanton, May 10, 2017 (notes on file with authors).
62
Stark, supra note __.

17
 essential pieces. If the mediator needs clarification or exposition, trust that she
will ask.

2. Key Players: For the mediator to do her job effectively, she must know the cast
of characters. Particularly in complex commercial cases, with multiple corporate
officers and multiple fact and expert witnesses, names get quickly jumbled. It is
easier for the mediator to digest the facts with a “cast list” of everyone involved.
In some cases, it is helpful to include a separate section that highlights the
primary players on all sides of the dispute, along with their titles and roles. Be
sure to specifically identify the representatives who will attend the mediation
from your side and who has settlement authority.63 Laying out these names allows
the mediator to familiarize herself with the key individuals before meeting them.

3. Relevant Procedural History: Mediators want to know the basic procedural

posture of the case because (i) it may impact the urgency of settlement and (ii) it
indicates the extent of the information available to the parties. Has the dispute just
emerged last week, with no discovery? Or are the parties on the eve of trial,
having already exchanged countless documents? Where is the case venued (i.e.,
federal court, state court, arbitration, etc.)? While some mediators may want a
more detailed procedural history, our survey indicates that the vast majority of
mediators do not. It is not necessary to describe each amended complaint,
discovery motion, and court conference. For example, you might state that the
complaint was filed in September in the U.S. District Court for the District of
New Jersey, the defendant’s motion to dismiss was denied in November, and
document discovery is scheduled to begin in December with party depositions in
February. If motions are pending, this information is also helpful. A short and
sweet procedural history is usually sufficient.

4. Critical Legal Issues: Questions of law are sometimes at the heart of a dispute.64
Imagine, for example, a lawsuit that turns on the tolling date of an applicable
statute of limitations, or a statute that imposes strict liability on the defendant’s
conduct. In such cases, the mediator needs to walk into the session with some
background on those points – particularly if the parties have different
interpretations of applicable law. Not every pre-mediation statement requires an
extensive section on “law,” however. The first word of our proposed heading is
critical. In litigation, lawyers will raise legal issues that are, perhaps, not so
critical. For example, the mediator does not need a briefing on every single
affirmative defense, nor does she need an explanation of each cause of action.
(Most mediators will understand that a breach of contract lawsuit will also include
claims for quantum meruit, even without pages of supportive case law). In a pre-

63
See, e.g., ADR Local Rule 6-7(c) of the U.S. District Court for the Northern District of California
64
Abramson, supra note __ at 272. See also, Sheldon J. Stark, “Crafting an Effective Mediation
Summary: Tips for Written Mediation Advocacy,” SHELDON J. STARK BLOG, available at
http://www.starkmediator.com/articles-links/crafting-effective-mediation-summary-tips-written-mediation-
advocacy/ (last visited Aug. 19, 2017). Evaluative mediator may want more of the legal case and the
facilitative mediator may want more of the settlement options. (Abramson, p. 98 and p. 272).

18
 mediation statement, lawyers should be disciplined in emphasizing only the legal
issues likely to be dispositive.65 The mediator may change her approach if only
laws, and not facts, are truly in dispute.

5. History of Settlement Discussions: Just as a mediator must walk into the session
with a sense of the parties’ identities and the dispute’s origins, she must also have
an understanding of prior attempts at resolution. If she does not, she may suggest
a settlement that has already failed, or she may not grasp some of the parties’
deeper concerns that have thus far prevented resolution. This section should
address (i) whether there were prior settlement negotiations; (ii) whether there
were prior mediations or court-sponsored settlement discussions; (iii) the nature
of those discussions (e.g., partial settlements, offers made and rejected, etc.); and
(iv) the last settlement position of each party. Many mediators agree that this
section is extremely important for establishing that context.66 According to the
local rules for the U.S. District Court for the Northern District of California,
“except to the extent prohibited by applicable laws of privilege or by these rules,
describe the history and current status of any settlement negotiations.”67 Some
mediators suggest that this section explicitly include each party’s last settlement
offer.68 While there is strong consensus that pre-mediation statements include a
brief history of settlement discussions, there is an open debate about whether
current settlement positions should be included in joint statements.69 We advise
against including current positions in shared mediation statements. An offer that is
too low could spook the other side into backing out of a mediation session if they
feel it would be unproductive. Moreover, it can make it more difficult for the
mediator to negotiate a better offer for you than the one that you have already put
in writing. Settlement is a topic that you may want to include in a confidential
statement, or confidential pre-mediation phone call with the mediator.

D. Five Topics to Include in Confidential Pre-Mediation Statements

Not all issues are appropriate to share with the other side. Yet, as experienced
lawyers know, it is often helpful for the mediator to have a complete picture of your
client’s underlying interests. During the mediation, these sorts of discussions can take
place in caucus. But prior to the mediation, you may want to alert the mediator to facts
that you would not necessarily want to share with opposing counsel.

65
“Being a deciding factor [in] bringing about a final determination.” DISPOSITIVE, BLACK'S LAW
DICTIONARY (10th ed. 2014).
66
Galton, supra note __ at 55.
67
Punnet, supra note __ at 134.
68
Mike Young, “How to Draft a Mediation Brief,” MIKE YOUNG MEDIATION, available at
http://www.mikeyoungmediation.com/how-to-draft-a-mediation-brief/ (last visited Aug. 19, 2017).
69
According to Gary Poon, “many mediators would caution against staking out your position, especially so
early in the mediation.” Nevertheless, some court programs require settlement demands. Poon, supra note
__ at 66. Local Rule 5.0(G) of the San Francisco Superior Court, for example, provides that all court-
mandatory settlement conferences, “not less than five (5) Court days prior to the date of the conference,
plaintiff must communicate a demand for settlement to defendant, and defendant must within two (2) Court
days thereafter convey to plaintiff an offer of settlement.”

19
 This can be done in two ways: (i) a separate ex parte pre-mediation brief70 and/or
(ii) a confidential pre-mediation telephone call with the mediator.71 Generally, we
recommend a pre-mediation telephone call instead of a confidential pre-mediation brief.
A phone call can have numerous advantages. It also allows counsel to more honestly
acknowledge the weaknesses of their case, or the strength of their opponent’s case. The
call gives attorneys the opportunity to warn the mediator about any particular personality
or internal dynamics with respect to their own client72 – information that advocates would
likely never put in writing. Over the phone, they can speak more candidly.73
Another strategic reason to prefer telephone calls to “confidential” written
statements is the risk of disclosure. It is generally true that documents exchanged in
mediation are not subject to admissibility. However, as Section II, supra, points out, there
is a risk that they could be subject to discovery or subpoena in future litigations or
arbitrations. As a result, we are hesitant to recommend committing certain information to
paper that your client truly does not want the other side – or the public – to see.
Regardless of whether you hold a confidential telephone call with the mediator or
send a confidential pre-mediation statement, there are certain topics that should be
covered:

1. Weaknesses of Your Case or Strengths of Opponent’s Case: A litigator is

unlikely to acknowledge to opposing counsel any sign of weakness. To the
extent that the opposing party has strong legal or factual arguments, an
advocate is likely to minimize those in a shared pre-mediation statement. In
your confidential communications, however, you can be more candid and
acknowledge that you recognize a particular Achilles heel. This honesty may
allow the mediator to offer a candid assessment or propose a workable
negotiation strategy.

2. Strengths of Your Case and Weaknesses of Opponent’s Case: Because

mediation statements are shared, you may also feel uncomfortable overplaying
your hand. For example, you might not want to cite all controlling law that
destroys your opponent’s arguments. Your confidential mediation statement is
an opportunity to clearly assert your side’s strengths and the other side’s
weaknesses without the fear of pulling your punches. Not only will this save

70
Different mediators use different terms to describe shared and confidential statements. For example,
Spencer Punnett notes that there is some confusion among advocates about the terminology. He refers to
pre-mediation statement that is shared between the parties and given to the mediator as the “mediation
memo,” but refers to the pre-mediation statement that is confidential only for the mediator as the “mediator
brief.” Punnet, supra note __ at 130.
71
Telephone Interview with David White, May 30, 2017 (notes on file with authors); E-mail Interview with
Dwight Golann, May 11, 2017 (notes on file with authors). According to Mike Young, “[m]ediations are
not summary judgments, so don’t take your old summary judgment brief, slap a new cover and submit it as
the ‘Mediation Brief.’ Seriously, we don’t need all that law and argument. 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.” See Young, supra, note __.
72
Punnet, supra note __ at 159.
73
This will also allow for the mediator to ask follow-up questions in response to what she hears.
Punnet, supra note __ at 158.

20
 face for opposing counsel, but it will also telegraph to the mediator the
arguments about which you are particularly confident.

3. Proposed Settlements: You might give the mediator some initial ideas for
how you could imagine the settlement unfolding. In a confidential
communication, you can offer ideas that might seem far-fetched or that your
client would feel embarrassed to share in a joint communication. For example,
in a dispute over the dissolution of a partnership, one party would like to float
the idea of continuing the relationship. Making this suggestion confidentially
would give the mediator the ability to throw the idea out, while both sides
save face.

4. Underlying Business or Personal Interests: Your client’s position might not

reveal their underlying business or personal interests. Indeed, your client may
be adamant about not sharing those interests. Imagine a dispute over
ownership of a business; your client may not want to reveal that she has a
potential acquisition lined up. Imagine a copyright dispute regarding an
unpublished manuscript; your client may not want to reveal that he has a
studio interested in acquiring the movie rights. Or imagine an inheritance
dispute between siblings about a valuable and sentimental tract of family land;
your client may not want to reveal that a developer has contacted her with
interest. These secret facts might color the mediator’s settlement strategy, and
give the mediator invaluable insight into your client’s true motivations. A
good mediator will take her obligation to maintain confidentiality seriously.
At the same time, she will be better able to negotiate with your client’s
interests – rather than just their position – in mind.

5. Dynamics and Personalities: In many cases, the personalities are just as

important to the resolution as the facts or the law. There may be particular
client dynamics that an advocate would never feel comfortable revealing
during a mediation session. For example, sometimes there will be division
within a corporate client about the correct course of action. Two business
partners may have different preferred outcome for a conflict. A company’s
CEO and General Counsel may have very different settlement numbers in
mind. A company’s books and records may not be as flawless as its treasurer
believes. Navigating these situations is tricky, even for the most poised
attorneys. But sharing at least some version of your client’s internal dynamics
with the mediator prior to the session will increase the mediator’s ability to
bargain successfully. Another advantage of a confidential telephone call is
that you can warn the mediator of your own client’s personality or quirks. You
would likely not be so candid in writing, but this information could prove
important to the mediator’s strategy.

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 V. Conclusion

Lawyers love rules. In litigation, they find no shortage of them. The Federal Rules
of Civil Procedure, the local court rules, and the rules of individual judges provide a
fairly exhaustive (and exhausting) framework for the format, timing, and content of
motions and submissions.
When writing a mediation statement, however, lawyers fly blind. Large providers
like the AAA and JAMS offer little substantive guidance for attorneys in drafting
mediation statements. Mediators themselves often fail to give explicit instructions about
their expectations, or worse, fail to deeply consider the submissions that would be helpful
in particular cases. Law schools are no better. Most schools rarely, if ever, teach budding
lawyers about this niche genre of legal writing.
Despite this vacuum, our survey data, practitioner interviews, and review of
existing guidance all suggest that best practices are beginning to coalesce. Most
mediation statements should be between five and ten pages. They should cite only the
legal authorities that would be controlling upon the outcome of the case. They should
adopt a conversational, rather than adversarial, tone. They should be shared among the
parties, and not confidentially sent to the mediator. There should be a separate,
confidential communication between each party’s lawyer and mediator, whether by ex
parte statement or by telephone call.
Part of mediation’s beauty is that the process is tailored to individual cases.
Consequently, the pieces of advice in this Article will not fit every dispute. But our study
suggests that they do represent the emerging mainstream for strategic representation in
mediation. If litigators consider the suggestions and strategies proposed by this Article,
they are more likely to put their mediator – and their clients – in a position to succeed.

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