Bring Forth That Confidential Position Statement (But Please Don't Send Me Pleadings): A Texas Mediator's View
As a Texas mediator, I have found that the most successful mediations are prepared for long before the parties sit down at the table. The foundation of a productive session relies heavily on the quality of pre-mediation submissions. I strongly recommend that counsel submit a written mediation statement, ideally one that is confidential and for the mediator’s eyes only, rather than just exchanging the same briefs with the opposing party. This confidential document allows for a candid discussion of the case's strengths and weaknesses without telegraphing your hand to the other side. By providing an honest assessment privately, you enable me to understand the true drivers of the dispute and develop a tailored strategy for settlement.
When drafting these confidential submissions, the goal is to provide a concise, thematic overview of the case, not to recreate a motion for summary judgment. I need to understand the human elements, the underlying business interests, and the emotional, non-economic goals that are often at the root of a dispute. A great submission will outline the key facts in chronological order, identify the primary legal hurdles, and, most importantly, highlight the specific, confidential hurdles to settlement. This might include sensitive information such as a client's maximum, confidential settlement posture, or personal animosities that are driving the conflict.
A crucial piece of advice, and one I cannot emphasize enough from a mediator's perspective, is to not send pleadings to the mediator. Pleadings are filled with boilerplate language and adversarial posturing that rarely help settle a case. Instead of providing the court documents, please provide a narrative of the case and, if necessary, short, crucial excerpts from evidence or depositions. I do not need to read thirty pages of a petition to know who the parties are or what the claims are. Providing a succinct, well-organized summary of the key facts is far more effective.
Confidential submissions are also the appropriate place to inform the mediator of any specific, unique, or unusual issues that could break the case open or derail it. This includes sharing with me the "why" behind your positions, such as concerns about future liabilities, corporate reputation, or a need for a specific, non-monetary, or creative resolution. This information, kept securely, helps me to guide the negotiations and to make targeted suggestions for settlement that you might not want to voice in a joint session or share with opposing counsel initially. It is in these confidential communications that true, creative problem-solving can begin before the first offer is even exchanged.
Finally, remember that the goal of a mediation statement is not to win the case but to facilitate a resolution. It is a tool for education and strategy. A well-prepared, confidential submission shows you have considered the risks, evaluated the evidence, and are prepared to engage in meaningful, productive negotiations. Taking the time to craft a thoughtful, honest, and confidential letter, tailored specifically to the mediator and not just a repetition of litigation filings, will set the stage for a much more productive and successful day for you and your client.