The Taming of the Feud Issue 3 | Best Practices for Success: Statement of the Case

One reason mediations fail is lack of preparation. There’s a vast advantage to the mediation process when all of the participants — mediator, attorneys, resource people, and clients — are fully prepared for the mediation day.

Mediators are trained to call all the professionals well before the mediation date to discuss expectations, process, and preparation. My agenda is to discuss everything from expectations of time and process to the all-important Statement of the Case. Details are critical.

For example, it may seem silly at first, but I discuss food allergies, cookies, and other tasty food and beverages, because it helps the process when participants are not allowed to get “hangry”! If we are to resolve the matter with a suitable solution, it is very important for the mediation process not to be derailed with the distraction of growling bellies. Seriously, I plan that well in advance.

Next, I discuss the comfort of the participants. Chairs can get hard. I address boredom, which is inevitable if the mediation is complex at all. Often, the mediator may be in the opponent’s room for hours. I encourage participants to bring video games, cards, books, and any other form of entertainment that will help them while away the time that the mediator is not in their room.

I ask the attorneys to prepare to resolve the case by bringing their laptops with a roughed-in mediation agreement complete with signature lines. The document includes all the boilerplate that the lawyers will want to see in the final settlement agreement. I ask them to add anything else that makes it quicker for the settlement to be signed. This saves a lot of time at the end when they are drafting the agreement for execution. Little things, like getting all the names entered correctly, save lots of time when everyone is tired.

And then there is the Statement of the Case.

Recently, I was shocked when one of the attorneys involved in the case I was preparing to mediate told me that it was his experience that the mediator never reads the Statement of the Case. I was dumbfounded. This should not be a common experience. A good mediator will review every single thing any participant provides.

One of the greatest advantages of the mediation process over the judicial process is that mediation solutions are not bound by the laws of the case. Thus, understanding the legal and emotional basis of the case enables the mediator to better understand the issues that must be resolved and addressed. All of this should be part of the Statement of the Case. Further, this information sparks ideas for the mediator to submit to better solution options and more easily resolve the case.

Not every case has an emotional component, but many do and this is what sets a good Statement of the Case apart from the purely legal brief some lawyers mistakenly assume it is. As the mediator, I want to read all the evidence and law an attorney is willing to share with me. (I often look at anything that is also filed in litigation, when attorneys do not use the Statement of the Case to present their stance in a thorough manner.) The ideal Statement of the Case should share with the mediator any historical and emotional issues that most likely would never be presented in a court of law. These are very effective in helping the mediator generate acceptable problem-solving options that speak to the participants’ perceived needs. The history that “got us here” is often a useful story, and through it, the level of conflict can be revealed, understood, and addressed.

The thorough preparation of each party should be critical to the process of arriving at a suitable mediation settlement. Most cases settle. Make sure yours settles in the most effective way for the client by helping the mediator see your client’s full story.

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2. If you have a great tip for attorneys and their clients involved in mediation, I’d love to interview you. Please email to schedule with me.

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