Mediation Minute

You Can’t Make Handprints When the Concrete is Set: The Vital Need for Exchange of Premediation Submittals

August 11, 2022

There are no timetables, deadlines or rules governing the conduct of the parties leading up to mediation. The parties prepare independently of each other.

Many times, there is little or no “premediation” discussion about settlement except, perhaps, some throw-away demands and offers which have little chance of settling the case. Because the parties are preparing in silos, they do not know what the other side thinks is important nor what facts or needs drive their settlement parameters.

To expose the intellectual cocoons in place before mediation, I encourage both sides to send a premediation statement to the other side for four reasons:

  • Most courts require the attorneys to send submittals to the mediator. Why only me? I am not the one who needs to be convinced to settle. Communicate with the other side. This is a wasted opportunity to “speak” directly to the other side.
  • Do not assume the decision-makers on the other side has all of the information. They need to know about claims or defenses, damages, and the extra-judicial or non-economic factors that might matter. Telling them new information on the day of mediation doesn’t give them enough time for the information to sink in.
  • The reporting of the case by the lawyer to the client may have been spotty due to time constraints or for a host of reasons too numerous to list here. The other side may have overlooked something that can be brought to their attention.
  • The exchange of statements gives opposing lawyers an opportunity to manage their clients’ expectations by letting them see the problems and challenges as articulated by you.

A good mediation advocate endeavors to do three things. First, create doubt, uncertainty, fear, and highlight key evidence or non-judicial factors promoting settlement. Second, provide the other side with information (evidence or otherwise) they need to make an informed decision. Third, manage client expectations and be a champion for a deal.

When information is conveyed with cordial and respectful language in a premediation submittal, it creates favorable conditions for a settlement to blossom. When the submittal is not shared with the other side, the process is hampered.

Why leave the other side to do their own risk assessment with information that may be incomplete or flawed? If a defense lawyer is completing a suit report for the client before mediation, but the only information they convey is what he or she thinks, the client is going to see the case only through a singular lens.

To be useful, lawyers need to send a letter at least two weeks or more in advance. The bigger the case, the earlier the statement needs to go out because there may be multiple decision-makers. The statement should not be caustic saber-rattling.

As we previously discussed in the “Ten Dirty Words” article, avoid characterizing the other side’s position as frivolous, meritless,  or subject to early dismissal by the court. You need to show the hurdles in their path rather than telling them there is no race. No client believes their position as championed by their lawyer is hopeless, so pejorative comments lessen your credibility.

Big bombs need a long fuse. Sending a mediation statement to the other side or the mediator the night before mediation is common practice but too late to matter. Why do lawyers do that? Because there are no orders or rules telling them when to send a premediation submittal. So much of mediation advocacy is unexamined habit and sub-optimal ritual behavior. Unfortunately, there are no real penalties for late submittals; the mediator isn’t going to report the parties to the court.

Last-minute disclosure doesn’t work because whatever settlement range the other party thinks is “right” has already been determined. Sending a mediation statement at the 11th hour is like trying to make a handprint in the concrete when it is already set. Communicate with the other side well in advance when they are potentially malleable, before the beliefs and numbers harden.

A premediation submittal is an opportunity to introduce facts and narratives in a voice unfiltered that the other side may not have read or seen. Silence creates a void, and that void may get filled with bad data or opinions masquerading as facts.

If an impasse at mediation were treated as the moral equivalent of a mistrial, you can bet more preparation and an exchange of submittals would become the norm.