Preparing a Confidential Mediation Statement

Confidential Mediation Statements Explained

A confidential mediation statement is a brief explanation provided to a mediator before the mediation session. Its contents may be known only to the mediator and the party that prepared the statement. The purpose of the confidential mediation statement is to give the mediator background facts about the case or other relevant information that can be used during or after the mediation session. Mediators commonly ask for this type of confidential statement if there are issues the mediator should know about prior to the mediation session. In such cases, the mediator will assure confidentiality and the parties will agree to keep such communications private.
The confidentiality of the mediation process is critical to its success. Unless confidentiality is guaranteed, the parties will not be candid with the mediator and the mediator will not be able to understand their positions. Without candor, confidence and trust in the mediator , the mediation process cannot be effective.
As an example, consider the situation where the mediation is very contentious because one party has anger problems and frequently explodes during any type of meeting or negotiation involving the other party. If the party with the anger problems knows that his lack of control could be used against him in some way, he will not be candid in discussing the case with the mediator and the mediation will not be effective.
It is important to note that some mediators are very relaxed about confidentiality and make very few assurances to the parties that their statements will be kept confidential. This is where it is useful to get a handle on the practices of the particular mediator you are going to be using. As noted above, however, the confidentiality of what happens during the mediation is critical to the process, so you want to select a mediator who places a high value on confidentiality.

The Essential Elements of a Mediation Statement

The key components of a mediation statement typically include the following:
Facts
This section should present a complete, concise summary of all relevant facts. All important facts that are important to the case should be included. Every fact offered should be designed to set the stage for the outcome the party desires. In addition to telling the reader what facts are important to the analysis, you should also explain why those facts are important and what result is likely as is pertains to the case at hand.
Interests
The interests of a party consist of their values, beliefs and desires related to the case. An interest may not necessarily be something that the party can articulate or that they even know exists. For example, someone may have an interest that a case resolve quickly because they have a financial interest at stake. However, it may be the case that the person does not realize why a quick resolution is in their best interest or their counsel may not know it. At mediation, it is important that all of the client’s interests are identified and articulated so that they can be addressed in the process.
In addition, it is important to understand the interests of the other party. What does the other party want? What do they think they want? By finding out the interests of the other party, you can more easily communicate the reasons why the outcome you are seeking is important to them and they should take the resolution you are offering.
Desired Outcome
Once you have identified the most important facts and interests that support your position you should describe the outcome you seek.
At the end of the day, the purpose of the mediation statement is to give the mediator a clear, concise idea of what the case is about, what the issues are, and how to resolve them.

Writing an Effective Mediation Statement

Just because you’re sending a confidential mediation statement to a neutral mediator does not mean you should treat it as an unqualified opportunity to berate the other party or to vent your frustrations about the case. Mediation is often a forum where parties can resolve a case once and for all, and even the most confident lawyers view the mediation process as a way to strategize, negotiate, and move toward settlement. The adversarial posturing seen during formal discovery often disappears in the mediation room, so keep that in mind as you draft your mediation statement. Your written mediation statement should be drafted with the same level of care that you would otherwise devote to correspondence you are exchanging with opposing counsel. Specifically, you should avoid characterizing other counsel or the other party in overly disparaging terms, and you should refrain from obvious "bone-picking" with your opponent.
Even though your mediation statement is better characterized as a legal brief because it will be viewed only by the mediator (and not the other party), keep the following best practices in mind when drafting it:
Don’t forget to proofread your work. Mistakes big and small can detract from the positive impact of a well-crafted and persuasive mediation statement. Also, keep in mind that your written mediation statement can form the nucleus of the mediator’s opening statement at the outset of the mediation session.

Confidentiality Issues in Mediation

Confidentiality is a fundamental component of the mediation process. Mediation is a voluntary settlement negotiation process. Since it is voluntary, there are no requirements that the parties mediate their disputes or share information with one another. All of the information exchanged during the mediation process is confidential. Confidentiality is a critical aspect of the process and allows the parties to explore issues freely and negotiate in good faith. If the process is not confidential, the parties will be less likely to mediate, and the process won’t work as effectively.
Most mediators have specific policies on confidentiality which they provide to the parties at the start of the mediation process. Even parties’ counsel may be required to sign a confidentiality agreement at the outset of the process. The mediator’s confidentiality policies may change for mediation of any particular issue, but generally speaking, nothing is exempted from confidentiality, including evaluation of likely outcomes at trial or mediation reports offered by third party advisers.
It should be noted that the confidentiality which underlies mediation is not absolute. There are laws, statutes and court rules which may make confidential information discoverable and admissible in certain situations. For example, in connected family law actions, information discussed in mediation may be discoverable in the litigation or divorce matters if a waiver of confidentiality is signed at mediation or disclosure is made for some other reason.
While confidentiality is the general rule, it is not absolute. The following is a non-exhaustive list of situations when confidential information may be discoverable and admissible in evidence:

The parties hereto agree otherwise.
There is a record or disclosure the mediator is required to make.
There is a threat of, or actual, harm to persons or property.
There is a claim or complaint of professional misconduct or malpractice filed against a mediator.
There is an agreement to mediate in a criminal or child protection matter supplied to the prosecutor.
There is a records request under freedom of information legislation.
There is an exemption from confidentiality or criteria for exceptions from confidentiality under Part 3.4 of the Family Law Act (/).

Given the importance of the confidential nature of mediation, it is imperative that the confidentiality of the information reviewable is preserved before, during and following the mediation process. Counsel for the parties must be extremely careful before divulging confidential information in the presence of their client. Further, the client must be advised that information disclosed during mediation cannot be disclosed to third parties and that they are similarly required to keep confidential all information shared during the process.

Samples of Confidential Mediation Statements

The statements provided here are examples only and need to be modified in accordance with the facts at issue in your particular case. Keeping in mind that parties must disclose all "undisclosed, written communications that occur after the time the case is ordered to a mediation session," it is a good practice to attempt to keep all settlement discussions confidential by making them confidential settlement proposals that are not tied to the specific claims and defenses that the parties will be discussing at mediation.
Example 1
Plaintiff’s Proposal
I am willing to resolve my claims in this matter in exchange for three quarters of defendant’s gross revenue for the next 5 years. That works out to approximately $750,000 per year.
Defendant’s Response
I am unable to pay anything for the claims you have made against me in this matter. I’m not even sure that what you have alleged against me was unlawful. In any event, if I were to pay even a quarter of the amount you have demanded, I would be forced into bankruptcy.
Example 2
Plaintiff’s Proposal
In order to resolve my claims in this matter, I am willing to accept $100,000 plus a release of claims. Please note that this release would not be mutual and no lawsuit or administrative proceeding was instituted until it was clear to me that defendant’s actions towards me were unlawful .
Defendant’s Response
I am not willing to make any payment to you at this time because I believe I owe you nothing. While we may have a cordial business relationship, it is not a friendship and unfortunately I was not prepared for your allegations. Perhaps if I had had some inkling that you were unhappy with our relationship, I would have been able to address your complaint before the lawsuit.
Defendant’s Proposal
While I am not prepared to pay a monetary sum to resolve my claims against you, I would be willing to provide you with a one-time only reference if you are currently employed.
Plaintiff’s Response
I am not willing to take any reference from you because I do not wish to have any further contact with you or your company. That’s why I have brought this lawsuit against you.
The examples above provide some suggestions on the type of language, even if not exact words, that may be used to convey a party’s intent to enter into a claim and expense consideration process without waiving the confidentiality of those discussions. Furthermore, the examples suggest language that should be considered to be confidential such that, should a statement be provided to the court or a mediator, the statement would not be admissible for any reason related to these discussions.

Most Frequently Occurring Errors in Mediation Statements

While there is no absolute rule in mediation as to how statements should be drafted, there are a number of areas where practitioners commonly come unstuck. Like so many other strands in the mediation process, they can largely be avoided by giving a moment’s thought before acting.
One of the most common mistakes is to cut-and-paste an earlier statement. This is understandable – it’s time consuming to draft a new statement from scratch. However, it can also be very dangerous – what applied to that case may not apply here. In particular, putting into a mediation statement inappropriate material might act as a magnet for adverse comments from the other side, whereas otherwise these comments might not have been made at all. It might also avoid the opportunity to deal with issues – even if they are dealt with at the beginning of a mediation, they may simply occupy precious time later on. It can be a good idea to ask a colleague to read through a draft statement, and to be ruthless about bearing in mind what issues the other side can be expected to raise, and to remove them. Equally, don’t be afraid to include issuers which you think will be difficult, if they genuinely need to be addressed: simply leave more time in the day to deal with them.
Another common error is to fail to put the statement into context. Obviously, it must be as neutral as possible. But if your client is in an industry where a change in control is expected to lead to improvement in performance, you should be saying so. Similarly, if the Court is likely to looking at the awards for guidance, it is important to say why, as this is clearly relevant to quantum.
A related error is to assume that a statement will be read in isolation. It is not uncommon for co-witnesses to exchange notes after reading each other’s statement, or ultimate witnesses to compare statements and notes. So, don’t think that because the statement you are preparing is written for a particular purpose (say, the mediation of a disclosure application) you should not be mentioning the principal issues in the case, as the tribunal are not aware of those issues. They are, and at any time during the course of the proceedings a Judge might, for example in determining disclosure, look at the mediation statement.

Rules of Court and Confidentiality Provisions

The confidentiality of mediation statements is primarily governed by either case law or those sections of the Federal Arbitration Act or state mediation acts which address mediation communication confidentiality. Almost all state mediations occur under the auspices of statutes providing for some level of confidentiality for mediation communications. These statutes generally provide that mediation communications are confidential. While the wording and scope of the confidentiality varies from statute to statute, legislatures have recognized that protecting the confidentiality of mediation discussions encourages parties to participate fully in the mediation process. The Uniform Mediation Act (UMA), adopted in substantially identical form by 28 jurisdictions, provides that representations made during mediation do not constitute perjury. If a party to a civil action submits a mediation statement to a mediator the statement "is subject to a claim of confidentiality unless expressly waived . " Thus if the document is not confidential under mediation confidentiality statutes it is similarly not confidential under the UMA. Even when courts have held that mediation statements are not confidential under those statutes, courts have generally discussed the implied confidentiality averred under the parties’ confidentiality agreements as an additional ground for excluding the statements when offered by the adverse party. The privilege against use of mediation communications contained in the federal arbitration act applies only to communications made during the course of an arbitration proceeding and not when the communications are made in anticipation of, or in connection with a mediation proceeding. The reported cases in this area leave no doubt that confidentiality will apply to any communications made in the course of preparing for the mediation even if no formal mediation ever takes place.