Mediation Statement

Step-by-Step Instructions for Drafting a Mediation Statement Pre-Drafting Considerations Confidentiality: Confirm whether the mediation statement will be shared with opposing counsel or kept confidential to the mediator Length: Aim for 5-15 pages depending on case complexity Deadline: Submit 7-10 days before mediation (or per mediator's requirements) Format: Professional, single-spaced, with clear headings and numbered exhibits

Step 1: Header and Introduction Draft a professional opening that includes: Case caption (Party v. Party, Case No.) Date of mediation Mediator's name Thank you statement: "Thank you for agreeing to mediate this matter on [date]. We look forward to working with you to reach a resolution."

Step 2: Executive Summary/Case Overview Write 2-3 sentences maximum: Type of case (e.g., "This premises liability case involves disputed liability and damages") Key issue in one sentence Your client's position in broad terms Example: "This case involves a slip and fall at defendant's store where liability is clear but plaintiff's claimed injuries are grossly exaggerated and unsupported by objective medical evidence."

Step 3: Factual Background Present facts chronologically and persuasively: Start with favorable context for your client Include key dates, times, locations Highlight favorable witness statements Reference and attach key photos, documents, or evidence as exhibits Use active/passive voice strategically (active for opponent's bad acts, passive for your client's) Spin technique: Focus on facts that support your theory while accurately presenting unfavorable facts in context If applicable and just for example, If Plaintiff: Emphasize dangerous conditions, lack of warnings, defendant's knowledge For Defense: Emphasize plaintiff's actions, obvious hazards, proper maintenance. In sum, facts in the light most favorable to your client for the purposes of negotiation.

Step 4: Liability Analysis Structure this section with: Applicable legal standard (cite relevant statutes/case law) Element-by-element analysis showing why law favors your client Distinguish adverse authority if necessary Address opponent's likely arguments and explain why they fail Highlight strongest liability arguments Example elements for premises liability: Duty, breach, causation, comparative fault

Step 5: Party Testimony and Discovery Analysis Analyze key testimony/discovery responses: Highlight favorable admissions from opposing party Point out contradictions in opponent's story Emphasize credibility issues (changing stories, implausible explanations – a jury hates a lying witness) Note gaps in opponent's discovery responses or lies. Reference specific deposition testimony with page citations (if available or summary if that is available, without the need for citations). Attach key deposition excerpts as exhibits or deposition summary by Casemark linked to the transcript.

Step 6: Medical Records/Injury Analysis For Personal Injury Cases: Pre-incident medical history: Frame favorably for your client Post-incident treatment: Analyze what records actually show vs. what's claimed Causation issues: Medical evidence linking/not linking injuries to incident Objective vs. subjective findings: Emphasize objective evidence Treatment gaps or inconsistencies Return to normal activities: Evidence of exaggeration For Non-PI Cases: Document analysis: What business records, contracts, communications actually show Quantification support: Whether claimed damages have proper documentation

Step 7: Damages Analysis Break down claimed damages: Medical bills: Reasonable and necessary vs. excessive/unrelated Lost wages: Properly documented vs. speculative Pain and suffering: Objective support vs. subjective claims Property damage: Actual vs. inflated repair costs Economic losses: Properly calculated vs. speculative Expert testimony: Reliability and basis of opponent's expert opinions Provide an analysis as to the credibility of these alleged damages in the light most favorable to the client.

Step 8: Expert Witness Analysis Address expert testimony: Your expert's qualifications and opinions Opponent's expert weaknesses (qualifications, methodology, bias) How expert testimony will play at trial

Step 9: Trial Outlook and Strategic Considerations Paint picture of likely trial outcome: Jury appeal: Which party will jury favor and why Pending motions: Summary judgment, motions in limine, etc. Evidence problems: What opponent won't be able to prove/get admitted Witnesses: Credibility issues opponent will face Costs and fees: Attorney's fees, expert costs if recoverable Appeal risks: Likelihood of reversal if opponent wins

Step 10: Settlement History Chronologically list all settlement communications: Dates of offers/demands Amounts demanded/offered Movement in positions over time Reasonableness analysis: Why opponent's position is unrealistic Example: "On 3/15/24, plaintiff demanded $500,000. On 4/1/24, defendant offered $25,000. Obviously the parties are significantly a part in the analysis of this case”.

Step 11: Settlement Recommendations – How can we settle this case? End with clear path forward: What opponent must do: "Plaintiff must recognize the weakness of their case and reduce demands significantly" Consequences of non-settlement: Costs, time, risk for opponent Do not propose an actual settlement number. Rather, discuss things that the other side needs to do in order to reach a resolution. Example: Plaintiff has further to drop than defendant. Defendant must realize this case involves a child in a plaintiff friendly jurisdiction. Even on Plaintiff’s best day, she will not be likely awarded more than X. The judge is focused more on one side than the other so it will be an uphill battle. Whatever the issues may be that are impeding settlement, it must should be described here and briefly why they are wrong and it will not work out for them.

Step 12: Exhibits and Appendices Attach key documents as exhibits: Key deposition excerpts, if important, but we do not want to bombard the mediator. Medical chronologies by Caremark. Expert reports Relevant contracts/documents Keep it to the documents that are the most important and/or documents that the mediator can us during the mediation. If you provide too much, it could get lost. The report is meant to highlight the most important information for negotiations.

Final Review Checklist Persuasive tone throughout while remaining professional Client's position clearly articulated Opponent's weaknesses highlighted A settlement path provided Proofread for grammar, spelling, formatting Mediator's name and mediation date correct Remember: The goal is to educate the mediator about your case's strengths while positioning for favorable settlement discussions. Be persuasive but don’t be so persuasive to lack credibility through inaccurate statements that the other side can easily disprove. Look reasonble, but advocate, hard.