I recently participated in two mediations, one as plaintiffs counsel and one as defense counsel, while they both successfully brought to a close the underlying cases, the parties to each had a different approach to the submission of mediation statements. In the first case, the mediation statements were shared with the mediator and opposing counsel (per the request of the mediator); and in the second case, the parties did not share their statements with each other (per agreement of the parties), opting to only produce the mediation statement to the mediator. While both cases settled, the mediations ran far different in both tone and length based upon whether the parties "shared" or kept their mediation statements "private."

Let us get this out of the way first. Obviously, a mediation statement is necessary (whether that statement has to be in written form is a different issue—see below). At minimum, the mediator, who is seeing the case for the first time, needs to know: the factual background; the procedural background; and the status of any prior settlement discussions.

Additionally, if there is a unique issue of law, maybe the controlling case (not plural) should be cited. If there is a contractual dispute, I would imagine a copy of the contract at issue should be made a part of the statement. If there are compelling photos, maybe one or two should be shared with the mediator. That said, the statement in no means should be a tome. That brings me to mediation No. 1—the shared statement.

Mediation No. 1

The mediator in mediation No. 1, as noted above, required a "shared" statement; his "rules" required it. Seeing that this mediator had a good track record, neither party protested this rule. So off went the parties to write their statements. Now, procedurally, much discovery had already been taken and this case was ripe for trial, so both sides had a familiarity with the facts and, presumably, the pros and cons of their respective cases. Moreover, presumably, the parties had been regularly reporting to their respective clients which should mean that both of the individuals in attendance with authority to settle this matter should understand the issues and costs associated with the case living past the mediation. And, this being the biggest presumption, the parties—knowing the facts and the pros/cons—should have been at the mediation ready to settle this matter; ready meaning closer in value.

Despite the presumptions, opposing counsel exchanged a "repackaged" version of his summary judgment motion, (which he had recently lost); heavy on case law and arguments (all 10 pages of it). As you can imagine the tone of the statement was very adversarial and combative. Dutifully, I turned the statement over to my client. My client upon reading it, and the demand that was not even close to the range we had valued the case at, hardened his position and he came to the mediation prepared for battle rather than for resolution; not where I wanted or prepared him to be prior to receiving the other side's memorandum.

Obviously, the traditional opening statement, which the mediator insisted on us performing in front of each other's client, did not help matters. As you can imagine, two proud attorneys having to speak in front of the other's client, did as any red-blooded Philadelphia attorney would do … we (in a more dramatic version of our written submissions) showed the other side why there is no way the other side could prevail at trial, so why even try to do anything but either pay us more than the case is worth because it's so flawless of a claim or, alternatively, drop the claim and walk away with your dignity before we vanquish you in court; the animations the opposing side brought over to show as part of their almost 30-minute opening statement also did not help in toning down the rhetoric.

That said, while the case ultimately settled (for the amount I had recommended to my client two months prior to the mediation) the very incremental movements by both parties to get to the settlement amount necessitated two full days of mediation and several phone conferences in between the two sessions.

Mediation No. 2

In mediation No. 2, as noted above, the parties opted to keep the mediation statements confidential. As with mediation No. 1, the case was ripe for trial; significant discovery had been exchanged; key depositions taken and expert reports had been produced.

Because the mediation statement was confidential, our statement was brief (no more than three pages) and outlined the key factors: the factual background; the procedural background; and the status of any prior settlement discussions. Additionally, given the familiarity we had with the other side's case, it included a section where we briefly discussed both the strengths and the weaknesses of the other party's case. However, it was done more in the tone of demonstrating why our settlement position was within the range that the case was truly worth (and let's face it, whichever side you are on, you have to concede that the case has some value and/or some weaknesses, or why did you even agree to a mediation?), rather than as an advocate trying to "win" the case.

Given the familiarity the parties had with each other and their respective cases, gained through over a year of litigation, the parties also opted to forgo opening statements and proceed straight into negotiations; which immediately began with the mediator assisting both sides to compromise a little and take a break from the rigidity of their last positions. Now mind you, unlike in mediation No. 1, the parties had been in settlement discussions prior to the mediation, so the "true" gap (versus the outlandish positions taken by the parties at the start of mediation No. 1) between the two parties' respective positions was already well-defined prior to the start of the mediation. Accordingly, the mediation was quick and efficient (started at 10 a.m. and finished with handshakes and well wishes at 1 p.m., inclusive of the time it took to peruse and partake in the mandatory lunch of hoagies, potato chips and chocolate chip cookies spread out in the common room at noon).

The Difference Between the Two

The difference between mediation No. 1 and 2 was simple, in mediation No. 2, the parties approached the mediation from a position of compromise, being able to truly focus not on the legal arguments but on "the dispute" (or the issues the parties are stuck on). And while the dispute is sometimes a legal issue (e.g., trivial defect), more often than not the dispute involves things that are not necessarily legal in nature (e.g., the relationship of the parties; the plaintiff's need for vindication or "justice;" the plaintiff's or defendant's inability to comprehend failure at trial; etc.). In mediation No. 2, the mediator was able to focus on those issues, rather than on the legal issues (issues that are best left for a judge to rule on not for a mediator to decide).

Now, while the nature of the mediation statements, private versus shared, on its own did not make or break mediation No. 1 or No. 2, the shared statements did not help. While many mediators, particularly ex-judges (who make really great mediators), swear by shared statements (and opening statements) because of a belief that it is the one time the parties will be able to share its message with the other party without the filter of their attorney (speak directly to the plaintiff or defendant/insurance company representative), the statements tend to become more boastful rather than candid; what I believe to have been the original intent of the practice.

Go figure, that a shared statement, one that is prepared with the assumption that it will be shared with the person with authority to settle the matter (versus just the other lawyer), in the hands of a trial lawyer (a zealous advocate) is going to become an advocacy piece written from a position of strength rather than one that is written with an eye toward compromise. You have one shot, so why not try to convince the other side they have no chance at defeating you in court? In fact, isn't that what we are trained and programmed to do? And forget about the opening statement, give a trial lawyer a microphone (proverbial) and a stage in front of not only the other side, but his own client, and you are guaranteed a great trial-worthy closing argument. Almost so good, that the parties who, you assume came to the mediation to try to settle the case, start smelling themselves and feeling good about their chances at trial because now they've seen their attorney in all her glory.

New Way to Approach Mediation Statements

So, why do we continue the practice of "shared" statements? Especially, when—and this has been my experience—neither side is truly moved by the other side's boasts? In my humble opinion, its simply because we—as a profession—like the status quo. We tend to do things, because it has always been done that way. Maybe a generation or two ago we weren't as adversarial in our profession or our politics, but in today's world where compromise at every level of life seems impossible, why continue a practice that highlights that in a process meant to be the exact opposite.

While a shared memorandum may be helpful in truly early mediations, where the other side has yet to show most of its hand through discovery and motions, in my very humble opinion, very rarely do these statements sway a plaintiff (who is relying heavily on the advice of the very same counsel who just wrote an amazing advocacy piece for them) or an experienced general counsel/insurance representative. Now, if we could be truly candid in our statements and reflect on strengths and weaknesses without all of the zealous advocacy that makes up most of what we attorneys write, then maybe the shared statement can soften up the nonlegal disputes. However, if we are being honest, complete candor to the other side is not within most of our DNA.

Instead, it may make more sense to submit short mediation statements (one or two pages) outlining the who, what and where, and then having separate pre-mediation meetings with the mediator—be it in person, by video call or by phone. During those meetings the parties will have the opportunity to present their evidence and advocacy, but the mediator will also be able to prove, before the parties get together for the mediation, what the actual disputes are (and in most cases, the disputes are one or two items, which are not usually reflected in counsel's first, second, third or fourth legal argument—nor is it reflected in his alternative argument should arguments one through four fail to convince you he is right). That way, the parties can begin to think of the holy grail compromise number (the one that makes both sides uncomfortable), and the mediator can think about how to "unstuck" the parties.

Regardless, candor and an understanding of weaknesses (not strengths) truly are the formula for mediation success. However you get there, whether its pre-mediation meetings, private statements or shared statements exchanged by enlightened counsel, is fine as long as you get there.

Will Sylianteng is the managing member of Wes Litigation Group, which he founded in 2013. He focuses his practice on litigation, subrogation and recovery, insurance coverage/bad faith and e-discovery. Contact him at [email protected].