Mediation is not something people are excited to be involved in, but it is necessary sometimes. Your mediation summary can make the process easier both for yourself, but also the mediator. A good mediation summary will include some key components, tell a story, take the right tone, provide evidence, and include a discussion of risk.
Your summary should include a brief case description and the legal issues involved in it. Introduce what the dispute is concerning. Give some information about where in the process the case is, and if there are any depositions or discoveries being requested or carried out. Summarize the discussion, including what each party is requesting as settlement. Describe what you assess as preventing a settlement from being reached. If there are any important dynamics, such as personality conflicts, you believe are effecting the positions, then elaborate on them.
Story and theme
“Think of your mediation summary as a story; write it persuasively to help the other side understand. Explain what has occurred to bring this case to mediation, and why the complainant acted in a manner that has caused this mediation to become necessary. Humanize your client and provide context for their actions,” recommends Elijah Schmaltz, writer at Academized. Your story should have a theme, all good stories do. Your theme will obviously depend on the situation; some examples of mediation themes include “no means no,” and “a broken promise."
Tone can facilitate or totally undermine the effectiveness of a mediation. Mediation works best when both parties enter it with an attitude of collaboration and problem solving. Approaching mediation as joint problem solvers means taking a cooperative tone. The proper tone and atmosphere is key for a reasonable and amicable settlement. This means reasonable and logical language, rather than angry and accusatory language. The tone should be one conducive to de-escalating and solving the situation, not getting even or becoming emotional.
It’s critical that everything said in the mediation summary can be backed up with evidence. We’ve talked about writing a persuasive story, but be careful not to get carried away and exaggerate. Attach your evidence to the summary when you submit it. Doing this shows you are not only being truthful, but are also prepared to go to court if a settlement cannot be mediated. Your evidence also helps by encouraging the other party to engage and explain their position. Sometimes sufficient evidence is all it takes for the other side to realize they are the one in the wrong and agree to your settlement request. By not including evidence you are signalling to the mediator and the other side that you have a weak case, and this will make reaching a settlement with them extra difficult.
Focus your summary on risk factors. What will happen if the motion is granted or denied? How strong will the case be if its evidence is denied? Does it hinge on an eye-witness who may or may not be found in time for mediation or trial? If the witness is found to have credibility issues, how much does that impact the case? Include a discussion of your side’s, and the other side’s, risk factors. These discussions are very helpful to your mediator, they can alert the mediator to questions that need to be asked of the opposing side. They also give your mediator a good idea of what the strongest aspects of your case are, and the weakest points of the other side. Mediators also appreciate honesty when it comes to your own case’s weaknesses.
Go online for help writing mediation advocacy
Writing isn’t easy for everybody, so it’s a good idea to get some help from the professionals. Here are some useful resources to get you started:
The goal of mediation is to reach a fair agreement without risking the uncertainty of a court decision. An effective mediation summary can better facilitate the process, making it easier for everyone involved, and even persuade the other side to settle on your terms.
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