One of the most important strategic decisions that needs to be considered in any mediation is whether the parties should exchange open mediation statements with one another or submit confidential mediation statements to the mediator only. Confidential mediation statements can provide greater insight into the parties positions making it easier for the mediator to resolve their dispute. A good confidential mediation statement should serve as a roadmap for the mediator and include the following information:
A brief summary of the relevant facts. Provide details to help the mediator quickly learn the keys facts of the case, as well as any previous settlement attempts. The mediator will need this information to develop strategies to help the parties resolve their dispute. To facilitate the process, I usually recommend that the parties stipulate to the relevant facts at the outset to save time and allow the mediator to focus her/his attention on the arguments advanced by each side. Obviously, the parties may differ as to their interpretation of critical facts, which the mediator must evaluate; however, the mediation will run much more smoothly when the basic facts are not in issue.
The Strengths of your case. Because open mediation statements are shared, you may not want to reveal all of your best arguments and controlling case law, giving the other side a heads up and more time to prepare a defense should the matter proceed to litigation. A confidential mediation statement, on the other hand, provides an opportunity to clearly assert your client’s strengths and the other side’s weaknesses without having to pull your punches, enabling you to telegraph to the mediator the arguments about which you are most confident.
The weaknesses of your case. In an open mediation statement, a litigator is unlikely to acknowledge any sign of weakness in their client’s case or the strengths of the opponent’s arguments. In a confidential mediation statement, however, you can more freely communicate your client’s weaknesses, concerns, and underlying interests, placing the mediator in a better position to assess the risks of your case, understand the pressure points of both sides, and develop a more workable negotiation strategy for resolving the dispute. An open mediation statement generally doesn’t lend itself to these insights.
Proposed settlements. In an open mediation statement, you might not feel comfortable sharing certain ideas as to how you think the dispute could be resolved. In a confidential mediation statement, you can offer a variety of proposals and seek guidance from the mediator as to which ones might work best with the other side. This will also give the mediator insights as to what your client is open to and create a rubric from which to initially work.
Underlying business or personal interests. An open mediation statement might not reveal a party’s underlying business or personal interests. Such information, however, in a confidential mediation statement, might alter the mediator’s settlement strategy giving her/him invaluable insight into your client’s real motivations, thereby enhancing the mediator’s ability to negotiate with your client’s true interests in mind.
Dynamics and personalities. In many cases, the personalities of the parties are just as important in resolving a dispute as the facts or the law. There may be particular dynamics that an advocate would feel uncomfortable revealing during a mediation. Navigating such situations can be tricky even for the most experienced attorneys. But sharing some version of your client’s internal dynamics with the mediator in a confidential mediation statement can be surprisingly helpful and enhance her/his ability to negotiate a successful settlement.
During my tenure on the bench, I have found confidential mediation statements to be incredibly useful. They have allowed me to develop a rapport with attorneys, gain their trust, and successfully negotiate the settlement of thousands of cases. As a mediator, arbitrator and AAA panelist, that hasn’t changed. Certainly, if the parties prefer using open mediation statements, there is value in that as well (see next month’s blog!), and a mediator should never require parties to submit confidential mediation statements; however, I believe the confidential mediation statement can significantly enhance a mediator’s ability to negotiate successful settlements, avoid costly litigation, and allow the parties to move on with their lives.
~ Hon. Matthew Rosenbaum (ret.), is a retired NYS Supreme Court Justice, founder of Rosenbaum Mediations, PLLC, and a panelist for the American Arbitration Association (AAA). He has resolved thousands of cases, both small and highly complex. For more information, go to www.RosenbaumMediations.com.
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