My sister recently sent our family a thoughtful COVID “care package,” which included wine, candy, games, snacks, magazines, and a bevy of other great stuff. It was a delightful and thoughtful collection because she included some personal favorites (e.g., toffee and smoked oysters). Her choices were the product of thoughtfulness and humor directed to each of us on the receiving end.
Personal knowledge is a double-edge sword in mediation. I mediate a number of “corporate divorce” cases, which can be challenging; unlike, for example, personal injury claims, the parties know each other very well—pet peeves, psychological triggers, how they think, their risk tolerance, and personal lives. In these cases, the litigants may include former partners, franchisees, commercial real estate tenants, familiar competitors in a trademark dispute, or shareholders. They know one another like my sister knows my wife and family.
Writing a Mediation Position Statement
In these types of cases, I implore attorneys to work with their client to leverage their personal knowledge of the opposing side and draft a thoughtful mediation statement—like the care package—that speaks to the individual(s) on the receiving end. I ask the attorneys to share their position statements. I cannot tell you how many times one side or the other complains in mediation that they are “hearing this for the first time.”
Surprises are great for parties, but not mediations. One of the easiest ways to avoid problematic surprises is to share information in position statements well in advance of mediation. One of the common causes of impasse is to change stories or pivot on the liability theory or change damage calculations on the eve of or during mediation. You need to articulate legal and non-legal reasons to settle at mediation, not reinvent the case on the day of mediation.
I also urge attorneys to draft a position statement for the opposing party’s eye—not just the mediator—well in advance of the mediation. The mediator appreciates receiving background information, but the submittal should be written for the eyes of the opposing party, not so much me or opposing counsel. The mediator is not the critical audience.
Regurgitating the legal theories and badmouthing the other side’s case in a submittal only seen by the mediator is a missed opportunity. Here is your one chance (other than joint session) to “speak” to the other side by writing in a conversational tone. A good letter can reframe the dispute, instill doubt, highlight the difficulty of resolution by adjudication, and discuss facts and concerns beyond the four corners of the case. This is an opportunity to use your familiarity with the litigant and reveal the strength of your position while respectfully urging nonjudicial resolution. A thoughtful and considerate reply submittal is equally helpful.
Drafting a premediation submittal educates your own client and gives them a voice if they participate (some) in drafting the letter. Lawyers sometimes fail to realize that their own clients do not understand legal theories and defenses, don’t appreciate evidentiary problems, and harbor optimism bias. This writing exercise also allows the client to vent and begins the important task of transitioning the client from a purely adversarial position to a collaborative deal-making mindset.
While a position statement permits one to reframe the problem and allows for emotional venting or dart throwing at the other side, be careful that you do not offend. Insults and pejorative terms like “obnoxious,” “frivolous,” and “specious” cause the reader to tune out. Being factually concrete is more powerful than adjectival labels describing the weakness of the case.
Finally, because of the familiarity of the litigants in a corporate divorce case, you might work creatively with the client and mediator to find something that other side may like as an inducement to a larger deal. A good position statement, like a thoughtful care package, should be constructed using your client’s personal knowledge of the intended recipient and should be sent well before the date of mediation.