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Do’s and Don’ts of Mediation Submissions

Providing the mediator with a statement and supporting documentation in advance of your mediation can help you advance your client’s position during the mediation. Here are some do’s and don’ts, along with specific recommendations from Mediation Solutions mediators on how to prepare your submissions for a mediation:

Do provide your materials well in advance of the mediation. Check the submission guidelines provided by the mediator and/or mediation company and comply with requested deadlines, and other guidelines regarding submission format and methods of exchange.

Providing your submissions well in advance of the mediation allows the mediator time to fully review your submission, digest your arguments, and prepare for the mediation, including review of any case law or jury verdicts in the jurisdiction, and devise preliminary settlement recommendations.

Mediator Joseph Tonetti says, “Get your submission to the mediator prior to the mediation through the ADR company. It Iets the mediator know what the case is about other than just the name of the case, and whether it is a motor vehicle accident, slip and fall, etc. If you are the only side to submit a mediation statement it gives you the advantage of having the mediator know your position in case you happen to leave something out on your presentation. And it gives your client the feeling that you are fully familiar with the case.”

Don’t wait until the last minute to provide your mediation submissions. Ignoring guidelines about format or method of exchange can delay your submission or make it difficult for the mediator to review it in advance of the mediation.

If the mediator does not have sufficient time to review your submission, he or she will not be educated about the facts of the case, your client’s desired outcome, or to review evidence that favors your client. This puts you and your client at an immediate disadvantage during the mediation, as the mediator may first be exposed to your client’s most favorable facts, evidence, and arguments at the time of the mediation.

Not submitting your documents in advance of the mediation may also risk significantly delaying your mediation, as some mediators will not proceed with the mediation without sufficient time to review any submissions. If the mediator does not have sufficient time to review important evidence, the mediation may take longer to complete or may require additional sessions, costing your client more money unnecessarily.

Do keep mediation submissions concise. Pull out the most important pieces of evidence that support your client’s position and include them. “Consider using bullet points to make it easier for the mediator to read,” says commercial mediator Harvey Besunder.

Don’t offer unnecessarily large mediation submissions. “Don’t submit an entire hospital record consisting of thousands of pages,” says Mediation Solutions of NY neutral Hon. William J. Condon. “It is not likely that the mediator will have time to review such an extensive submission, and if they do review it, it is likely to cost significantly more money in review time.”

Woman wearing a light green shirt smiling

Don’t provide every single document or exhibit that has been produced in the case.

Lauren J. Wachtler, Esq.

“Don’t provide every single document or exhibit that has been produced in the case,” says Wachtler. “Don’t send an entire deposition transcript unless it is short or context is needed for the testimony on which you are relying.”

Why rely on the mediator to hunt through thousands (or even hundreds) of pages of evidence or records to find the important elements? Use the opportunity you have been given to highlight the most important pieces of evidence that support your client’s position.

Do provide the mediator with relevant caselaw that supports your client’s position. But “Don’t write an entire legal brief,” says Wachtler.

Do include any formal demands and the last offer that was made on the case. Providing the mediator with this information gives a good starting point for negotiations. Informing the mediator of any policy limits, excess information, or firm settlement positions in advance saves time during the mediation and may help the mediator determine whether mediation will be successful.

“Be realistic in providing the mediator with a demand or an offer to settle the case,” says Wachtler. “This may never even be shared with the other side but it gives the mediator an idea of where you are coming from and where there might be room for further discussion.”

Don’t take an unreasonable position in your statement. “Don’t posture in the mediation statement by providing a demand that would be a complete victory if you won a motion or trial or take the position that there are no weaknesses to your case,” says Wachtler.

Man wearing a striped tie in front of the American Flag

Stick to the issues – your client will have an opportunity to vent during the mediation.

Harvey Besunder, Esq.

“Try to put the information in the light most favorable to your client without being overly zealous,” says Besunder. “Try to stick to the issues – your client will have an opportunity to vent during the mediation.”

Don’t leave out information about the status of negotiations prior to the mediation or fail to speak with your client about their settlement position before the mediation commences. Learning for the first time during the mediation that your client will not budge from their previous settlement position can derail a mediation and cost you and your client time and money.

Do keep it professional. “Don’t engage in attacks on the other party or their attorney in your mediation statement,” says Wachtler. “Don’t make disparaging comments about the other side – no name calling,” says Besunder. “Be civil in your presentation and use it as a road map for future arguments.”

Do inform the mediator about whether your submission should be kept confidential. Mediation is a confidential process, and parties are entitled to request that certain information, including settlement authority, case weaknesses, and communications be kept confidential, including information disclosed in mediation submissions.

The more information you give the mediator, the better equipped the mediator will be to devise a settlement that both parties will accept. Anything you request to be kept confidential will remain confidential before, during and after the mediation.

Do include both the strengths and weaknesses of your case and of the witnesses in the case to allow the mediator to make a fair assessment of the liability issues, likelihood of success at trial, applicability of current law, and the value of the case.

William J. Condon in blue jacket and pink tie

Let the mediator know what sets your case apart from other, similar cases.

Hon. William J. Condon

“Let the mediator know what sets your case apart from other, similar cases, whether on liability or damages,” says Condon. “Tell the mediator if there are special circumstances. For example, tell the mediator if your client’s employment requires specific physical tasks that your client can no longer perform as a result of his or her injuries, or if the parties have a previous relationship that might affect the liability assessment or the ability to settle the case.”

“Be honest in assessing what you think are the strengths and weaknesses of your case- remember while you are an advocate, a mediator is not a judge or going to be rendering a decision for either side,” says Wachtler.

“Make sure that statements can be supported, but remember that in a mediation, there is some flexibility with the rules of evidence,” says Besunder. “You can discuss the credibility of the parties and possibly witnesses, during the mediation and in your mediation statement.”

Finally, “never say never,” says Wachtler. “I settled a case recently where the parties came in with “0” offer and a $1.1 million demand!”