I recently participated in two mediations, one as plaintiffs counsel and one as defense counsel, while they both successfully brought to a close the underlying cases, the parties to each had a different approach to the submission of mediation statements. In the first case, the mediation statements were shared with the mediator and opposing counsel (per the request of the mediator); and in the second case, the parties did not share their statements with each other (per agreement of the parties), opting to only produce the mediation statement to the mediator. While both cases settled, the mediations ran far different in both tone and length based upon whether the parties “shared” or kept their mediation statements “private.”

Let us get this out of the way first. Obviously, a mediation statement is necessary (whether that statement has to be in written form is a different issue—see below). At minimum, the mediator, who is seeing the case for the first time, needs to know: the factual background; the procedural background; and the status of any prior settlement discussions.