The mediation memorandum, also called the mediation statement, is your opportunity to tell your story, to show you are prepared, and to hone the mediator’s focus toward your perspective. Sometimes mediation statements are for the mediator alone; other times and solely with express permission, the statement may be shown to opposing counsel. Either way, the statement helps the mediator focus on the critical evidence, the compelling story, and the reasons why you have a strong position in court if mediation should fail. The statement can also address the pitfalls of the case to take some perceived air out of the metaphorical tires. The statement demonstrates to all who see it, especially your client, that you are effectively advocating and representing their interests.
It cannot be underscored how useful and valuable a mediation statement can be for a mediator. You can expect that the mediator will read this statement intently. This writer when mediating will read the statement multiple times and focus both on the big picture as well as nuances and details provided to ensure a full understanding. This can even lead to discussions of points or issues before the mediation which make the mediation itself more effective. A mediator who is up to speed from the get-go is in a far better position to move the offer needle and also to settle the case
You have in the mediation statement the opportunity to communicate with your mediator salient points that the mediator can internalize and draw upon when helping to bring about settlement. When the mediator truly understands your perspective and has command of the main points of the case as well as the nuances, the mediator is best able to effectively advocate when in caucus with your opposing side. Hearing the argument from you is one thing; hearing from the mediator is something else. Opposing counsel has been told your side and perspective in your communications, papers, and filings. But ears that may have been closed are often opened up some to hear from the neutral, impartial, confidential communication with the third party mediator.
To accomplish a mediation memorandum there are various options. One option without too much time or investment may involve a quick conversion of a summary judgment brief statement of facts or with an internal memorandum evaluating the case. Understandably, many cases at mediation are not so procedurally advanced as to have a prepared fact statement from motion papers. Cases and the kind of lawyering associated with them varies as much as the weather. Often there is no in-house written case evaluation. You may only have a run of the mill file, not even on that is all that organized.
No matter how far along the case is, preparing the mediation statement is your the opportunity– and may even be your first opportunity– to evaluate the case, note the drawbacks as well as the advantages, and even to recognize remaining discovery holes. This analysis can reflect for you the basis for the costs will be to proceed further along.
When possible, the superior option is to evaluate the file, take stock of the advantages and disadvantages of your positioning, and to draft a mediation memorandum that is honed to the specific facts, themes, and nuances of your particular client’s dispute. There are many opportunities to make a mediation statement more than a recitation of facts or a restatement of a demand letter. A future blog entry will discuss specific strategies for an effective advocate’s drafting of a mediation memorandum.
About the author: Andrew Tolchin is an attorney and mediator in the greater Houston area, and founder of 713 Mediator, LLC and Tolchin Law Firm, PLLC.