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ON MEDIATION: Mediation statements: Don’t just do them, give them to the right person

Following a 30-year career as a litigator, Jim Mathie now mediates cases full time both from his offices in downtown Milwaukee and throughout the state. He can be reached at jmathie@mathiemediation.com.

Following a 30-year career as a litigator, Jim Mathie now mediates cases full time both from his offices in downtown Milwaukee and throughout the state. He can be reached at jmathie@mathiemediation.com.

Our topic today is mediation statements: Should you prepare one? Yes. What should be included? I’ll talk about that briefly. And who should you send it to? We’ll spend most of our time on that.

Preparing a mediation statement gives you an opportunity to take a serious look at your case and at your opponent’s case. If you’ve mediated with me you’ve probably seen this bullet list of suggestions for inclusion:

  • A brief review of the procedural status of your case, including what will happen next if the case is not settled;
  • A brief factual overview;
  • Identification of the key factual and legal issues, including a detailed damages analysis;
  • A bullet-style list of your factual and legal strengths;
  • A candid bullet-style list of the other party’s factual and legal strengths, along with your response;
  • Highlighted copies of any crucial documents or pleadings;
  • Any relevant history between the parties;
  • Any underlying nonmonetary needs of the parties;
  • Any history of settlement discussions, including the last proposals; and
  • A summary of any other helpful information.

With that outline, you should be able to produce a thorough submission that lays out your view of your case together with evidence supporting that view. Now what do you do with what you have produced?

I encourage the parties to exchange their mediation statements, although I admit many still do not. Here’s why you should.

Your mediation statement is one of the main ways to convey your side of the case. And although it’s effective to convey that to the mediator, it’s even more important to convey it directly to the other side.

You probably already know – if you’ve talked to representatives of the other side – that they don’t see the case the same way that you do. That may seem confusing or disingenuous since both parties are working with the same facts. What you may not realize is that, even with the same facts, the case can appear very different depending upon your perspective. That’s partly because of a couple of cognitive biases that we all have: motivated skepticism and biased assimilation.

Motivated skepticism is the tendency of individuals to perceive information that is consistent with their preferred judgment or conclusion as being more valid than information that is inconsistent with that conclusion. It’s made up of both a self-enhancement bias – the ready acceptance of preference-consistent information – and a self-protective bias, which means reluctance to accept preference-inconsistent information. Studies have found that consistent information is examined less critically than inconsistent information.

As a case develops, and more and different information is discovered, the parties often both feel that their case is getting stronger and the other side’s case is getting weaker. That’s because the new information isn’t looked at the same way by both parties.

Biased assimilation refers to people’s tendency to interpret new or subsequently learned information to maintain an initial belief. It includes the propensity to remember the strengths of confirming evidence, but the weaknesses of disconfirming evidence; judge confirming evidence as relevant and reliable and disconfirming evidence as irrelevant and unreliable; and accept confirming evidence at face value while scrutinizing disconfirming evidence hypercritically.

The tendency is so strong that studies have shown that belief polarization will increase rather than decrease or stay the same when mixed or inconclusive findings are assimilated by proponents of opposite viewpoints.

So, back to your mediation submission. This is one of your best opportunities to convey your side of the case and demonstrate how the evidence supports that position. It may be the first time that the other side has seen the evidence in that way. Why would you pass up that opportunity when the other side will play such a large role in the settlement that you want to reach?

It’s true that a mediator can digest confidential mediation statements and convey that the other side sees the case differently. But the parties need to recognize the limits of the mediator. You will always know more about the details of your case than will your mediator. But here, a more practical consideration comes into play.

If you’re trying to have the other side look at your ase in a new light, will it help or hurt your if the other side doesn’t see that coming?  Recall how you respond when you’re surprised. Does it make you more or less likely to change your position? Now add another layer: your client. If your advice to your client will be changing, perhaps greatly, at mediation, how easy or difficult will the mediation be? Will you be more or less likely to settle?

Supplying the other side with your mediation statement before mediation allows your opponent and his or her client to digest your view of the case and avoids the sorts of surprises that can derail negotiations that might otherwise be productive. And providing that preview can also help ensure that the proper person or persons will attend the mediation or be involved in a settlement decision. This can be extremely important, for example, at an insurance company, where the settlement authority might be layered.

The primary argument against exchanging mediation statements is that they contain confidential information. Sometimes that is true, but most of the time both sides have the same basic facts. There is some risk in previewing arguments that will be used at trial, but there is a larger risk that your best arguments will never benefit you because a trial will most likely never occur.

And finally, exchanging mediation statements provides another benefit: It forces you to see your own case in a different light. Again, that’s a good thing. You wouldn’t want that to happen for the first time at trial.

So, take the preparation of your mediation statement seriously and make it as strong and well-supported as you would if it were being presented to a jury. Then give that statement to your opponents before mediation so that they can digest it and come prepared to settle. Then review the statement that you have receive from them and revisit your own view of the case. Now you’re ready for a productive discussion.

See you at mediation.

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