Why You Should Provide a Mediation Summary
Providing a summary to your mediator is one of the most valuable tools you can use to make sure that your mediation starts—and stays—on track. There is no set format. Your summary can be a formal, written document; an informal email; or even an oral presentation to the mediator.
Make the most of your time—you are paying for it, after all!
The first benefit of providing a summary to your mediator is that it maximizes the time spent. Without a summary, a mediator will usually spend their first hour getting up to speed on the case. In fact, they might continue to play catch-up for longer.
Refresh and Finesse
Preparing the summary gives you an opportunity to refresh your memory on all the intricate details of the facts, claims, defenses, and applicable law in the case. It also helps you to get to know your case better and can help you fine-tune your mediation strategy.
In mediation, good advocacy has a very specific focus: you want the other party and their attorney to see the advantages of settling rather than proceeding to trial. Preparing the mediator to effectively advocate your position is essential. As with other aspects of advocacy, you should present your summary as having a story with a theme. This story should provide humanizing context for your client’s actions and motivations in this case.
Your summary should also aim to give a preview of your case’s strength. It should include a realistic assessment of both sides’ risks in going to trial. Discussing strong legal arguments in your favor and enumerating the evidence you have for your case gives the mediator the tools to meaningfully express to the other side that you are likely to win at trial. Similarly, an honest discussion of legal arguments that cut against you can show your good faith to the other side and present opportunities to address those arguments on your own terms.
You do not want a key issue to come up for the first time too late. Writing the summary prepares you and it prepares the mediator. It also helps avoid antagonizing or exasperating either the mediator or the other party.
What Should Be in Your Summary
You’ll want to make sure your introduction of the facts and applicable law is succinct. You want to highlight each of the important issues in a way that gives your reader just enough information to appreciate what’s happening. Also, note where the case is in the legal process—for example, has either party conducted any discovery? What negotiation attempts has each side made? Make sure you also indicate any details that you think might be preventing a settlement from being reached and any important dynamics such as personality conflicts.
You should discuss objectively verifiable standards in your summary to avoid making it look like a wish list. This part of the summary is where you would include applicable statutes and case law that help support what you are asking for.
Similarly, it is critical that you have evidence to back up all the assertions in the summary.
When it comes to requesting relief, dollar amounts can be off-putting or inflammatory to the other side. It is, however, beneficial and appropriate to signal in a summary any non-economic concerns you might have because it allows all parties to the mediation to plan for addressing them.
If you do not provide a summary, at least do this:
If you are not going to prepare a mediation summary, you should at least give the mediator
- A copy of the Complaint, Answer, any relevant motions and respective orders that would give the mediator insight into the dispute between the parties;
- Copies of any contracts, trusts, wills, applicable appraisals, expert reports, medical records, and/or accountings that are relevant to the disputes between the parties; and
- Copies of any pre-mediation settlement communications.
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I hope you find these ideas helpful when planning your mediation. I offer both in-person, online, and hybrid mediation services and would welcome the opportunity to mediate your cases.