Today I will start a series of articles entitled Preparing for Mediation. The series is intended to guide mediation participants in achieving a successful mediation and give them insight into how the process works and what to expect.
The first topic I would like to address is the position statement that the participants or their solicitors prepare and send to the mediator well before the mediation meeting. This will usually contain materials and a case summary to allow the mediator to get familiar with the facts (and opinions) of the case. This position statement and all related material will usually be disclosed to the other participants. I also ask the participants to send me a confidential statement with notes, which remains confidential and is not shown to the other participants.
A sound position statement will set out the proven facts of the case. The participants and their solicitors should know that mediators are experts at seeking out shaky arguments and weak facts. The position statement should focus on the strongest facts for your case and present argument and facts that counter the other side’s anticipated arguments against your case.
It is also a good idea to outline your key witnesses and a brief summary of their anticipated testimony. This helps the solicitor judge the strength and merits of a case. In considering what to include, it is the quality – not quantity – of the testimony that counts.
Sometimes, evidence speaks louder than words. In most commercial property disputes, for instance, the contract is an essential piece of evidence that must be provided to the mediator before the date of mediation. Photographs of sustained damages can also be critical in helping to determine the value of a case.
A mediator’s job is much easier when provided a list of monetary damages. This is especially true when the dispute is not necessarily about fault, but about value. A list of lost rents or wages, payments made for alternate facilities, lost sales and the like will allow the mediator (and the other participants!) to understand the total loss claimed.
The bottom line is that your position statement to your mediator should be full and forthcoming with your strongest evidence. This is not the time to be cryptic, mysterious or to wait to pull out the “smoking gun” on mediation day. Mediators do not like surprises and need all the pertinent facts beforehand.
