What should I tell the judicial mediator?

Issue November/December 2016 By Judith Gail Dein

Mediation before a U.S. Magistrate Judge is available in every civil case filed in the United States District Court for the District of Massachusetts. While each Magistrate Judge has his or her own procedural order, each requires some sort of brief mediation statement to be filed beforehand. This statement is often the first substantive presentation about the case given to the mediator, and can be quite effective in shaping the direction of the mediation. It is not a legal brief and serves a different purpose than a formal pleading. What follows are some points you may want to consider in determining what to include in your mediation statement. The list is not intended to be exhaustive, and obviously does not supersede any requirements of a specific mediator.

As an initial matter, it is important to recognize the setting in which the mediation is taking place. In Massachusetts, Magistrate Judges serve as trial judges with the parties' consent, and can be referred any and all pre-trial matters in civil cases that are otherwise being handled by a District Judge. Magistrate Judges do not mediate cases in which they are the trial judge or in which they may be referred substantive matters. This means that they often mediate cases about which they have little prior knowledge. Because of this, it is often helpful to have a brief overview of what the case is really about. This does not mean a listing of all the legal claims, but rather the factual context of the dispute and a general description of the relevant legal framework. It is also helpful to explain the stage of the litigation in which the mediation is taking place, such as whether key discovery remains to be done. This information helps the mediator understand how much proof the parties actually have to support their claims. It also helps identify which considerations may be most important to a party in deciding whether to settle, such as costs of continuing litigation, whether a final resolution is imminent, and the like.

Each Magistrate Judge has his or her own style of mediation. I, like many of my colleagues, tend to be facilitative rather than evaluative, meaning we try and work with the parties to reach a resolution that meets their needs, rather than ruling on the merits of the case. It is important to keep the type of mediation in mind, and to provide the mediator with the information that will be helpful in reaching a successful conclusion. As a general rule, I find that since I am not deciding the case, I do not want or need lengthy legal dissertations. Key cases may be helpful if there are unique areas of the law, but it is not generally helpful to refer me to extensive summary judgment pleadings. Instead, it is much more helpful to inform me about the parties' goals for the outcome of the mediation. On the other hand, if you feel that a detailed understanding of the law is necessary for the mediator to help the parties reach a resolution, include the analysis in your mediation statement. Just remember the purpose of your statement: it is not a legal brief, it is a position statement designed to help reach a settlement.

Because the parties are likely to be meeting the mediator for the first time at the mediation session, the mediation statement is an excellent opportunity to provide information about the key players in the dispute. A great deal of time is often spent by the mediator at the beginning of a mediation session trying to determine who the real decision makers are, the relationships between the parties (both on the same side of the case and between the sides), and the personal motivation behind the litigation. Similarly, the mediator needs to determine the relationship between the attorney and the client: is the client deferring to the attorney or calling his or her own shots? Has the attorney explained (and the client heard) the problems with the case, or are they waiting to hear it from the mediator? Insights that can be provided in the mediation statement can greatly expedite this process.

You may also want to consider whether your mediation statement should be kept confidential. Culturally, in Massachusetts the statements are kept confidential, although in other jurisdictions there is a requirement that they be shared. There are certain types of cases where the factual assumptions are very important, such as wage and hour cases or cases asserting complicated damage calculations. It is often helpful to exchange these facts before the mediation begins.

Finally, the mediation statement can and should be used to provide any suggestions as to how the mediation process can be most successful. For example, in a multi-party case there may be suggestions as to the order in which the mediator should meet with the parties, or whether certain parties should be kept together or separated. In some cases, initially meeting with the attorneys and not the clients, may be most effective. This type of information is very helpful, and enables the mediator to appropriately structure the mediation.

I encourage the parties to be honest in their statements. That having been said, mediation works best if the parties are prepared to really listen to the other side's concerns and perceptions about the dispute, and are willing to reassess their positions. As I always say, I reserve the right to ask parties to pay more, or accept less, than they say they will do in their mediation statements. Mediation is a process in which keeping an open mind greatly enhances success.

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