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What to Include in Your Mediation Submission

Mediators will almost always ask for a statement or a submission prior to the mediation. As mediator Lauren J. Wachtler says, “This is not done to make more work for the lawyers, but it is extremely helpful to a successful mediation.”

Your mediation statement or submission can be kept confidential so that you can feel comfortable sharing your ultimate goals with the mediator, while keeping them private from opposing counsel and parties.

Wachtler, who focuses on mediation in commercial cases, says, “I like the mediation statements to be confidential- for my eyes only- unless the attorneys want to exchange them—which I discourage.” Joseph Tonetti, long-time personal injury mediator, agrees, saying, “It is not necessary or required that you exchange your submission with the other side. In fact, many submissions are meant to be “Confidential” and should be so marked on the neutral’s copy.”

Whether you’re new to mediation or you have been mediating cases for years, these pointers may help you craft your mediation submissions to best highlight your client’s strongest arguments, and inform the mediator of your client’s most important issues and desired outcomes.

Getting started

Before getting started on your mediation submission, you will want to get to know your mediator. What style of mediation do they favor? Do they have specific guidelines for mediation submissions?

Next, “review the file, including the complaint, the answer, and any prior motions and decisions before writing your mediation statement,” says commercial mediator Harvey Besunder. “Then state the history of matter. Outline who the parties are, their relationship, how the matter came about, and the facts of the case. Spell out the claims, state your client’s position and your rebuttal to the anticipated position of the other side.”

What to include in your submission

Wachtler has a list of things she wants to see in the submissions, in addition to the pleadings, which either side can provide. “I do not give page limitations,” she says. “I request the following:

  • A brief statement of the case from the party’s perspective;
  • Where the case stands in terms of procedure – is discovery complete, are there motions pending, has a note of issue been filed, etc.
  • If there have been any decisions in the case, I want to see them;
  • Have there been any settlement discussions and if so what is the status of those discussions;
  • What, in your view, are the strengths and weaknesses of your case;
  • Do you see any impediments to settlement- unrealistic expectations from either side, clients, an upcoming business transaction with the other side etc.;
  • What would you realistically see as a settlement of the case;

If there has been any motion practice I would like to see, in addition to the mediation statements:

  • The memoranda of law;
  • Any exhibits to the motion(s) you think are important;
  • The memoranda of law;
  • Any document that may have been produced in discovery hat you think is important or relevant or that you want me to see.”

Tonetti, says, “You should include with your submission a synopsis setting forth your position on disputed issues. It should not be too long, especially if the case does not involve complex factual or legal issues. Mediators in most instances bill for review time, as warranted. For example, 150 pages of illegible or repetitive (or both) chiropractic or physical therapy records are not necessary, but you should include should include the duration and number of visits.”

According to Mediation Solutions of NY neutral Hon. William J. Condon, “The ideal submission for most personal injury cases includes the most important pieces of evidence along with 3-4 pages outlining:

  1. The basic facts of the case
  2. Your analysis of the case, including:
    • The relevant law that applies
    • Strengths and weaknesses of the evidence, and
    • Why you think your client should prevail
  3. Your opinion of the value of the case and support for that value.”

If you are including exhibits with your submission, Tonetti suggests including a list of those exhibits. “The exhibits attached to your submission should be the key ones regarding disputed issues, i. e., photographs on slip and fall cases, highlighted medical records etc. But do not walk into the mediation with a huge binder and hand it to the mediator and say this is for you,” he cautions. “A huge binder is for trial or possibly arbitration. Mediators don’t try cases. Hopefully they settle them.”

“If you’re submitting a deposition transcript, make sure you identify and highlight the testimony you want the mediator to see,” says Wachtler. Don’t expect a mediator to read through hundreds of pages of deposition transcripts.

Want more tips on mediation submissions? Stay tuned for our article on mediation submission do’s and don’ts.