The Advantages of Shared Mediation Statements
In my last blog, I extolled the virtues of confidential mediation statements. There are also benefits to exchanging non-confidential mediation statements with the other side. Here are a few reasons why shared mediation statements can help fast-track negotiations and possible settlements.
Communicating Your Client’s Positions. While a confidential mediation statement may allow you to be more forthcoming with the mediator, it does little to ensure that the other side understands the positions of your client and the strengths of her/his case. A shared mediation statement can help fill in knowledge gaps, eliminate surprises, clear up misconceptions, discourage unrealistic expectations, and provide a framework for facilitating more productive discussions and negotiations. That being said, attorneys should be careful about making certain pronouncements, ultimatums or “drop dead” demands (e.g., “the other side has no case,” or “we will not take anything less than seven figures”), which could have a chilling effect on the mediation or otherwise derail your negotiations.
Fostering Collaboration. Shared mediation statements can help foster open and transparent communications, which, in turn, can lead to a more collaborative and collegial process during the mediation. This is particularly the case in my region of Upstate New York where many of the more seasoned lawyers -- practicing in areas of specialty such as medical malpractice and commercial litigation -- have known one another for some time and are familiar with each other’s styles and strategies.
Open Review of Case Law. Much like motion practice, a shared mediation statement allows each party to review the other side’s supporting legal authority. Consequently shared mediation statements can provide the parties (and not just the mediator) with a more realistic assessment of the strengths and weaknesses of their case, and the concomitant risks associated with litigating the dispute in court should mediation fail.
Civility. Ultimately, a shared mediation statement lets you set the tone for how you will approach your case. Being respectful, but firm, can facilitate compromise without showing weakness. Conduct yourself as you would in court. As judges require civility in the courtroom, a good neutral should encourage the parties to act cordially with one another. Displaying the strengths of your case (and even a few weaknesses) while showing respect towards your opponent and her/his client, will go a long way towards creating a more collaborate atmosphere, bringing the parties together, and concluding a successful mediation.
As a NYS Supreme Court Justice, I reviewed many confidential and non-confidential mediation statements. As a mediator,I continue to review such submissions with the goal of thoroughly understanding each party’s positions, providing opportunities for collaboration between their attorneys, and encouraging sensible resolutions of their disputes.
~ Hon. Matthew Rosenbaum(ret.), is a retired NYS Supreme Court Justice, founder of Rosenbaum Mediations, PLLC, and a panelist for the American Arbitration Association. He has resolved thousands of cases, both small and highly complex. For more information, go to www.RosenbaumMediations.com.
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