First Impressions: Drafting Effective Mediation Statements

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