By Andrew Ness
Earlier posts cover preparing for mediation more generally.[i] This post provides tips for mediation statements, drawn from my experience both as a construction dispute mediator and an advocate at mediations.
The Goal of the Mediation Statement: Helping the Mediator to be Effective
Everything in the mediation statement should focus on the objective of helping the mediator to be as effective as possible. It should include basic information such as the project context, important contract features, and a concise description of the core issues in dispute. Lesser issues in dispute can be mentioned briefly.
In most construction cases the parties exchange and provide mediation statements to the mediator in advance, describing the dispute from each party’s viewpoint. These statements vary considerably in scope and depth, ranging from 10 to 60 pages long, often with a long list of documentary exhibits. The level of detail varies over a similarly broad range. From the mediator’s perspective, the maxim “less is more” applies. A well-crafted mediation statement of 12-15 pages is often quite suitable for even very substantial construction disputes. If it needs to be longer, a summary of the key points at the outset is very helpful to orient the mediator quickly.
The mediator needs to understand the key facts and legal arguments supporting the case, for use in asking reality-testing questions of the other party. Arming the mediator with these basic tools is critical to help the mediator to be effective. This takes up much of a typical mediation statement. Many counsel draft this portion of the statement as if it were a brief, looking to persuade the finder of fact. But there is a clear distinction between the goals of advocacy and those of arming the mediator. The mediator is not a fact-finder. But substantiated facts and legal propositions can be useful tools for the mediator in caucus. Broad contentions (like “they are not acting in good faith”) and unsubstantiated allegations are less useful, and generally have little or no impact in a mediation context. While a statement that “we fully expect further discovery will clearly demonstrate X” may be an accurate assertion, it is unlikely to have any effect on a mediation occurring next week.
Mediation Statement Exhibits: Include Sparingly
Documentary exhibits that directly challenge the other side’s factual position, and statutes and case law supporting key legal arguments, are most useful to mediators. The watchword, however, is “include sparingly.” An old construction dispute maxim is that there are ultimately only about 10-15 project documents (or less) that will have a significant impact in resolving a dispute. The difficult trick, however, is recognizing which documents those are. Make your best effort to keep the documentary exhibits limited to those few documents that really make a difference.
Frequently counsel include numerous extended email exchanges, lengthy reports, and the like as exhibits. Since mediation statements and exhibits are usually transmitted electronically and read on a screen, opening and reviewing a lengthy list of exhibits is a protracted exercise, often yielding little useful information for the time required. A better alternative is to include one or two key documents that are part of a longer exchange with a short reference stating “these two exhibits are prime examples, but similar documents can be provided on request.”
The same holds true for case law. Submitting a raft of cases to support every legal proposition is overkill. It is far more effective to provide 1-3 solid cases on the few legal propositions that substantially impact the dispute.
The mediator has limited time to prepare for the mediation, and must do so as efficiently as possible. Inundating the mediator with exhibits means most may receive only a cursory look. Alternatively, the parties will pay for the mediator’s tedious and unproductive wade through a pile of exhibits that do not contribute to a successful mediation.
Contract Documents: Provide Key Portions
The mediator usually needs to review the key parts of the parties’ contract, but not the entire contract. Providing only the key portions – the Agreement form, General Conditions, Special Conditions, and pricing, schedule, and general scope of work description is usually sufficient. Omit extraneous attachments, and include only specification sections with a direct bearing on the dispute.
The best practice is to agree with the opposing party on the contract provisions to provide to the mediator. Task one party to assemble and provide those portions to avoid duplication. This is recommended also for other lengthy documents where a few discrete portions are relevant, such as environmental or geotechnical reports, requests for proposals, and lengthy claim documents with their own extensive attachments. If submitting the entire document, provide the document index and highlight key portions for the mediator.
Highlight Relevant Portions of Statutes and Cases
Because mediators not associated with law firms often lack access to Westlaw or Lexis, it’s advisable to attach key cases and statutes, highlighting the relevant portions. Make it easy to find the important parts without wading through the entire case or statute.
Add Useful Exhibit Descriptions
Many times, I unzip an exhibit file to find 60 or more exhibits, identified only by exhibit number. Or the information in the title is useless to me, not identifying the subject clearly, leaving no easy way to see what each item pertains to. Adding useful information to the exhibit titles helps immensely, such as “Owner letter 12-13-2023 re concrete honeycombing.” This takes more preparation, but allows the mediator to find exhibits of particular interest much more efficiently.
Provide Timelines of Key Events; Identify Key Characters
Every guideline has its exceptions, those above included. Your case may justify taking a different approach. Recently I received what appeared to be an overly lengthy statement from a party. But on reading I found that the core argument involved that party’s consistent but unsuccessful efforts over an 18-month period to convince the other party to address the key issue in the dispute. This was laid out in specific and compelling detail that justified the extra pages and added exhibits. But the statement would have been even more useful if it had included a timeline enabling the reader to keep the complex sequence of events in order easily.
Construction disputes often involve two years or more of project events. Timelines providing quick reference to order of the key events are rarely seen, however. In cases with multiple parties, a cast of characters, identifying the key actors (people and firms) for both sides, is another useful tool. Mediators generally appreciate any summary they can easily reference to keep a complex set of facts straight.
Damages Summaries and Prior Settlement Discussions
It’s essential to provide a clear, itemized damages summary. The original contract value, approved change order value, and amount paid to date are also important to provide (and often reveal unreconciled differences between the parties).
A brief history of any prior settlement offers by each party is always valuable.
Finally, it’s useful to have a list of the planned attendees at the mediation from each side.
Recycling
Frequently, counsel will modify a previously produced document for their mediation statement. But if you are re-using a document, do make the needed modifications and additions, and it is usually helpful to identify the source document utilized.
Similarly, in smaller cases both sides may rely on previously generated documents stating their respective positions as their mediation statements. This can be a very efficient way to reduce costs associated with the mediation, so long as the prior document is supplemented with mediation-specific information.
Conclusion
These tips are pretty straightforward, and will soon become second nature in your mediation preparation. The yield will be shorter but more forceful and effective mediation statements that arm your mediator to have the best chance of obtaining a resolution of the dispute.
[i] See “Building the Foundation for Mediation Success” 9/15/24
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