Mediation Submissions 

[For a brief summary of my usual practice re submissions, please see the “Submissions” heading under the “Mediation Process” tab.]

Why put the time and expense into a mediation submission when one of the main purposes of mediating is to save time and expense?  Parties will have a higher quality and more effective mediation if they provide the mediator with the facts, issues and maybe the law before the mediation starts.

Obviously, it saves time in the mediation if the mediator has a prior understanding of the facts, claims and defenses.  Less time needs to be spent in the mediation educating the mediator on the facts and issues, whether in the opening statements or the private caucuses.  But there are other important reasons to do submissions.

Good submissions will allow the mediator to develop a strategy or plan for handling the mediation.  While a good mediator can go into a mediation with little or no prior knowledge of a dispute and the parties will have a reasonable chance of a satisfactory result, there is a much better chance for success if the mediator can draw up a plan.  That plan will include the mediator’s theories about what issues and interests are driving the parties’ dispute, questions to help surface the parties’ interests and which “tools” in the mediator’s tool bag might be most helpful to use.  Of course, during the mediation the mediator constantly reflects on the discussions and modifies or abandons the plan as necessary.

Submissions also will allow the mediator to draft summaries of each party’s view of the facts and relief sought.  Some mediators routinely restate each party’s opening statement to good effect.  I don’t usually do that.  However, there have been times where I have done each side’s opening statement.  I had a case where a party representative’s repeated outbursts during opening statements quickly ended them.  The parties’ submissions allowed me to lay out the parties’ views of the facts, claims and defenses using my summaries.  On other occasions, it was clear before the start of the mediation that party opening statements would be too counterproductive.

A third reason for doing submissions is starting the education of the other party’s decision maker(s) before the mediation session.  Since this education of the other side is such an important part of every mediation, it is best to start it as soon as possible.

What then should be included in the submission?  I like submissions to include a succinct statement of the facts, the losses, damages and other relief sought and the prior settlement discussions if any.  If there are any unusual legal issues with which the mediator might not be familiar, those should also be included.

The form of the submissions is not important.  Frequently, arbitration statements of claim and answers are factually detailed and include legal arguments and citations.  If so, little else may be required by way of a submission.  On the other hand, if the pleadings are “notice” pleadings then the parties will want to do good submissions.  The submissions can be in the form of letters, briefs or emails.  Even a telephone discussion may suffice in a simple case where there is no exchange of submissions.

I like to get the submissions several days before the mediation, so that I can carefully review them.  If the submissions attach profit and loss or other detailed analyses, it is very helpful to get them at least three days before the mediation.

With respect to confidentiality, I prefer that if the parties are going to do submissions that they exchange them with the other side.  Again, why not start the education and persuasion process before the mediation, particularly if the parties previously used notice type pleadings?  If there are highly sensitive matters or evidence that only potentially is of the “smoking gun” character, they can be addressed in private communications to the mediator.  Despite my preference, if any party wants to do a completely confidential submission I of course will be glad to receive it.

I can make do with whatever the parties decide to give me, but submissions that cover the facts, issues and relief sought will increase significantly the probability of a mediation that is efficient, effective and satisfying to the parties.

© Copyright 2007, Robert H. Logan. All Rights Reserved

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