First Impressions: Drafting Effective Mediation Statements

28 Pages Posted: 20 Oct 2017 Last revised: 13 Mar 2019

See all articles by Brian Farkas

Brian Farkas

Cardozo School of Law

Donna Erez-Navot

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: April 25, 2018

Abstract

In civil disputes, mediators often encourage advocates to submit premediation statements. These narratives are meant to educate the mediator on the most pressing factual and legal disputes between the parties before the session. Yet litigators have little guidance on drafting such statements. Unlike many legal documents – pleadings, motions, and settlement agreements – there are no standard templates or specific requirements on their form or substance. Neither law schools nor law firms provide much training on drafting pre-mediation statements, which are considered a fairly niche genre of legal writing. Indeed, mediators themselves, as well as administering organizations, often provide little direction to advocates. Now that mediation has become firmly embedded into our litigation culture, it is time for litigators to embrace some concrete “best practices.” Drawing on new empirical survey data and interviews with experienced mediators, as well as case law and statutes regarding disclosure, this Article proposes guidelines for litigators seeking to draft effective premediation statements that will be most helpful to the mediator, and ultimately, to their clients.

Keywords: Mediation, Litigation, ADR, Dispute Resolution, Courts, Advocacy

Suggested Citation

Farkas, Brian and Erez-Navot, Donna, First Impressions: Drafting Effective Mediation Statements (April 25, 2018). Lewis & Clark Law Review, Vol. 22, Issue No. 1, Cardozo Legal Studies Research Paper No. 529, Available at SSRN: https://ssrn.com/abstract=3056057

Brian Farkas

Cardozo School of Law ( email )

55 Fifth Avenue
New York, NY 10003
United States

Donna Erez-Navot (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

55 Fifth Ave.
New York, NY 10003
United States
(212) 790-0873 (Phone)

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