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The truth about pre-mediation submissions

Avoid wasting time, energy and paper with these simple rules

By Jane Pribek

Attorney William Jennaro displays files pertaining to a mediation case he is working on at the Milwaukee offices of Cook & Franke SC. (WLJ photo by Kevin Harnack)

Attorney William Jennaro displays files pertaining to a mediation case he is working on at the Milwaukee offices of Cook & Franke SC. (WLJ photo by Kevin Harnack)

Many trees likely died to create the 10-inch stack of paper that is the pre-mediation submission a party recently submitted to Milwaukee attorney/mediator William Jennaro.

Its first three pages are a statement of a case. The rest is supporting documents. Jennaro will read the case summary and skim the remainder, he said.

“The reality is, I’m not going to read through all that,” Jennaro said. “It’s the kind of submission you might give to a judge on a summary judgment motion. But that’s not my role as a mediator.”

Succinct statements that crystallized the issues with culled attachments are Jennaro’s preference, he said, primarily because it saves the parties money. Reading the pre-mediation submissions in the vast majority of cases shouldn’t require more than about a half hour, he said.

While some mediators like to come to a session as a “blank slate,” with no knowledge of a dispute, they are in the minority. Most mediators ask for pre-mediation materials. Sometimes they are shared among the parties; sometimes they are confidential to the mediator, ex parte; and sometimes the mediator requests both types.

Milwaukee attorney/mediator Kathleen Rinehart said she always requests materials in advance, because then she needs less time to get to the heart of the dispute at the mediation.

But that’s only true if the individuals preparing them assembled thoughtful, useful materials.

Here’s how she and other attorney/mediators said to approach that task.

Find out which type of mediation your neutral provides.

Rinehart, chairwoman of the State Bar’s Alternative Dispute Resolution Section, said in an auto accident case where no ongoing relationship was anticipated, an evaluative mediator might be employed and he or she would want to see critical evidence in formulating the evaluation.

That’s in contrast with an educator challenging a tenure decision, where both parties expect him or her to remain under the school’s employ for years to come. In the latter case, a facilitative mediator likely is the choice, and evidence underlying a claim is helpful but not critical.

Tone it down.

Strong advocacy in written materials isn’t helpful, said Madison- based attorney James Cole.

“I’m not their judge. There’s no need to spend a lot of time arguing their case to me,” he said. “I  don’t need lengthy arguments like they would include in a trial brief.”

What needs to be shared is your clear understanding of what the nature of the dispute is and the issues at play. Your statement of the issues should come as no surprise to anyone, Rinehart said.

Attorney Charles Phillips of Waukesha said he occasionally received materials that were inadequate, causing him to request greater detail.

“I’ll get a memo that says, ‘Husband wants to pay only $50 per month. Wife needs $5,000 per month.’

That doesn’t help,” he said. “If, on the other hand, you tell me, ‘Wife has a health problem. She’ll only be able to work for another 18 months, at which point she’ll need assistance from her husband. Husband does not believe she’s really sick.’ Now we have a context in which to have a conversation. And, it’s based on interests and not positions.”

De-emphasize the legal.

The legal theory is not particularly helpful, Jennaro said. Of greater importance is how the parties found themselves in their situations, how they want the case resolved and why.

“It doesn’t matter how big the lawsuit is, how much money is involved and whether it’s between big corporations — or neighbors,” he said. “It’s almost always the human element that’s important in whether the case will settle.”

Be forthright, and think creatively about outcomes.

This especially is true in the ex parte letter to the mediator, if that’s something he or she requests. If the retention of a business or personal relationship is important, tell that to the mediator. If an apology is important, convey that as well.

“Be candid and honest about the strengths and weaknesses of your case, and the other side’s,” Cole said.

Include a chronology of past negotiations.

Phillips said he always specifically requests a chronology because he wants to know the extent to which parties already have explored settlement. He additionally asks each party what the impediments toward reaching a settlement might be.

While you’re preparing the written submissions, prepare your client, too.

“Unless their lawyers help them to peg their expectations, their expectations tend to be unreasonable,” Phillips said. “When they simply throw up numbers, barriers and positions, it’s hard to address what their real interests are.”

He often prefaces such mediations by telling the parties there might be “outbursts of reason” in the session.

That usually brings laughter and helps defuse some of the emotion.

But all in all it’s much easier to reach a settlement when the client has been counseled about the purpose of the mediation and the benefits that settlement will bring — namely, control, finality and peace of mind.

On that note, Jennaro said he often encountered parties in cases he successfully mediated long after the fact, who always tell him what a huge relief it was to them when their cases settled and that they hadn’t thought about them since. Conversely, when he runs into parties where the case didn’t settle, even years later, he said, “They still want to talk about it. They just can’t let it go.”

Jane Pribek can be reached at [email protected].


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