Skip to content

Your All-Important Pre-Mediation Summary: Seven Other Valuable Uses!

March 23, 2015

Another one of Nature’s Great Mysteries?  Why do so many lawyers, plaintiff and defense, still fail to prepare and wisely use one of their most valuable and necessary tools for their client’s (and their) mediation success:  A Pre-mediation Summary?

(Many attorneys still routinely ignore this practice, particularly with no Court Order.  See, Would a Pre-Mediation Case Management Order Improve Success At Mediation,  February 2, 2011)

Whether Court-ordered for the mediator or simply an essential for greater success in mediation, you already know my view of the significant value of any simple pre-mediation summary for, among other reasons, educating your mediator.  See,  Mediation Summaries: Why Bother?,  July 11, 2013.

Rarely do I re-visit educational blog subjects previously discussed.  I do reserve that right, however, to repeat, if not embellish any important subject, particularly in areas of good mediation practice repeatedly proven to have direct financial benefit to success in mediation.

However, my intent with this review is not to try to answer this puzzling question, but rather to offer additional worth to the effort of creating the Mediator’s Summary in hopes of encouraging more widespread acceptance of its real total value.

I will assert it once again:  Those who prepare and provide even the most basic mediation summary to their mediator continue to enjoy a disproportional mediation success as opposed to those who do not!

Clearly, your mediator finds it invaluable.  And, that, by itself is reason enough.

But, once this simple document is already in your word-processor draft existence, there are many, many other equally valuable uses for your summary, or some version of it,  beyond that simply for use in educating your mediator.

These “other” uses are literally simple alternative drafts of the same summary, require little additional effort, have great value and are even more reason for your efforts to always produce ANY mediation summary possible.

Once you have a semblance of a mediation summary in hand, here are at least seven more valuable uses of reasons for your same work-product for you to consider:

First, the mere timely construction of your summary “requires” you (or someone) to organize and prepare you for your mediation.  And, your know my feelings on preparation.  See,  Become One of the Top Ten Per Cent of All Mediating Attorneys,   April 11, 2013

Even if your paralegal constructs your draft of the summary, the mere fact it is constructed for your review forces you to thus review the product and the file and thus indirectly causes you to be far more organized for your mediation than having none prepared.

Second, by repetitive use of a form or formula type summary, i.e., inclusive of all of the “normal” things of any case summary, your review of your draft summary compared to your formula or model summary, will immediately alert you (or even your staff) to those matters missing or in need of attention well BEFORE mediation.

The basics of any good mediation summary, as you already know, should include a short factual outline of the relevant facts for assignment of responsibility, the applicable law of the case, a summary of the legal issues in dispute for judge or jury decision, a review of  all legal damages sought (if injures are an issue, a separate factual outline of the basis of recoverable damages), and a review of all prior negotiation, including all offers and proposals for settlement exchanged.

Third, a simple advance copy to your client provides not only valuable contact with your client, but informs THEM of your preparedness on their behalf.  (Just remember to edit/omit any extreme advocacy, including your “evaluation” of the claim to the defense.  This subject is better communicated, in person, in your pre-mediation conference with appropriate explanation of the negotiation process!)

Further, a pre-mediation summary can serve as both an outline for your client’s preparation as well as a “request to update” to allow your client to assist you by encouraging them to update any matters not as current as you would like, but still well prior to mediation.

Fourth another copy, inclusive of advocacy, can now be used, perhaps with some selective didactic or expanding to educate your opposition counsel (with a courtesy copy to be forwarded to THEIR client).  Most attorneys know what their opponents need to most effectively participate in mediation.

No client (and thus no lawyer) likes surprises in mediation.  Education, in advance, pays the most mediation dividends.

(One of the most frequent caucus complaints heard by mediators include: “We didn’t know that.”,   “We have been asking for that information all along.”,  or  “I wish they had told us that before mediation.”)

However, one of the most important collateral benefit to your opposition receiving your summary ( or at least acknowledged by your mediator) is that its mere existence overtly and loudly “signals” your readiness for all issues at mediation (and thus, trial, should mediation fail).

Fifth, this same “educational letter” can be used to update/refresh your intended demand to begin your mediation.

The best negotiations can become stale.  Verbal  communications get muddled.  Reminding your opposition (and your client?) of the past can both avoid re-treading old ground and show the path to success.  Further, taking any concessionary approach to your last known position, prior to formal hearing, can often also raise your level of success by demonstrating your reasonableness.

Sixth, a file copy of your summary become a quick and handy checklist-outline for your opening statement (if one is advisable).

More than once, I have seen harried attorneys using their mediation summary as a quick outline for the opening statement.  (Weren’t they happy they had one!).  Alternatively, should your mediator suggest you might want to waive your opening statement for valid reasons, your opening statement is already sitting in their hands!

Seventh, this same summary can also serve as a checklist of your requirements for a settlement agreement, once successful.  See, Mediation Settlement Agreements:  What You Should Know,  January 18, 2012

Too often excessive time is required, after a tentative resolution agreement. in simply finding the mutual agreeable wording for formalizing the agreement achieved.  Bringing your proposed draft agreement is always the best practice, but having an outline of your goals, already in your Summary, can be an equal time saver.

To prevent this discussion from becoming too long, I will stop with just these SEVEN additional uses of your critical “mediator summary”.  However, I’ll bet each of you have or can add a few more.

Every prepared lawyer in mediation will utilize as many benefits possible of a structured pre-mediation summary for their mediator.

However, once any draft is prepared for  its primary use for/with your mediator, as demonstrated, there are multiple “other” ways to use this same work-product, with simple modifications, for the maximum total mediation benefit of your client.

Solve just one of the worlds mysteries!;  Prepare and wisely use your “mediator’s”  mediation summary in many, many other positive ways to simply, but substantially and immediately increase yours and your client’s success in mediation.

(And, please feel free to leave a comment on YOUR suggested “other” uses for your mediation summary.)

Dan, from Sebring, Florida.


4 Comments leave one →
  1. March 23, 2015 2:37 pm

    Thanks, again, for revisiting this very important issue.

    In the Circuit Civil Mediation Certification Training Programs that I teach (and to which you also provide valuable assistance), I emphasize to the trainees how important the receipt of the pre-mediation statement is to accumulating basic information about the facts and the following topics (I will limit it to 7 since you did):
    1. How hostile or friendly are the parties and/or their counsel;
    2. How aggressively are they pursuing the litigation (lots of motions and discovery or has the case stalled out);
    3. Have there been ongoing negotiations that may be important to where negotiations commence during the mediation;
    4. Who is the judge and what is their experience with that particular judge;
    5. Are there any pending motions or has the judge disposed of any that may impact the negotiations;
    6. Are there any proposals for settlement that have been filed, lapsed, or do they expect to file one in the near future;
    7. Are there any important hidden non-monetary interests that they may want to reveal about their client or perhaps share about the opponent that may open the door for other settlement possibilities.

    Each of these things gives the mediator a running head start on the problem. After reading the pre-mediation statement in a relaxed environment, or pondering the contents while the mediator is driving to the mediation, the mediator can begin thinking of questions that may force the parties to think differently about their problem. If the mediator does not receive that statement prior to mediation, a good mediator will still think of important questions or options for settlement during the course of the mediation, but it is also possible that the rapidly evolving circumstances of a typical complex mediation may prevent the mediator from having those moments of “brilliance” or “clarity” that can be achieved in a more relaxed setting.

    Many of my trainees are lawyers. Many of them have never treated the pre-mediation statement as a serious tool for assisting the mediator, preparing themselves for mediation, or for benefiting their clients. Many of them fail to do them even when there is a court order directing them to provide one to the mediator. After we address this topic in class, many of them tell me how they now see things differently and will start using them to their advantage.

    I feel so seriously about this issue that I’ve incorporated some of your thoughts about this topic in my training.

    Thanks for the great blog topics.
    Eric Dunlap
    Circuit Civil, County, and Appellate Mediation Training Provider


  1. The Mediator’s Role: Achieving Mediation Value for Every Participant | Honeywell Mediation
  2. Personal Injury Mediation: The Importance of Accurate Special Damage Information: Part I: Medical Expense and Liens | Honeywell Mediation
  3. Basic Mediation Administration: Helpful Hints To Use For a Much Smoother Ride | Honeywell Mediation

What Do You Think? Your Insight Can Be Helpful To Others.

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

<span>%d</span> bloggers like this: