Old habits die hard.
Most litigators were trained in the school of thought that says mediation statements should not be shared. At least, that’s my experience. I rarely see advocates in mediations sharing their position statements with the other side — and yes, I understand the various reasons for not sharing.
That said, I’ve seen several attorneys share their position statements over the years, and with excellent results.
A perfect example
I mediated a case in which the defense counsel doubted that the plaintiff’s attorney had fully informed the plaintiff of prior offers, or his reasons for settling. So in the initial joint session, defense counsel recited the history of the prior negotiations — then restated the reasons he believed the case should settle.
Defense counsel then mentioned that he had shared his position statement with the other side — and “assumed” plaintiff’s counsel had shown it to his client. It was clear this had not occurred, and during a break I was asked to make a copy of that statement for the plaintiff.
By doing this, defense counsel ensured that the plaintiff was aware of prior settlement discussions, and the reasons why defense counsel believed the case should settle.
And another – –
I also saw this done effectively in a case where the plaintiff’s counsel lacked confidence that the defendant had been fully informed by his attorney about developments in the case related to discovery. Plaintiff’s counsel believed these developments significantly increased the risk of a bad result for the defendant — and mentioned (in his opening remarks) having shared his position statement with defense counsel.
Once again, I was asked to make a copy of the statement during a break — in this case, so the defendant could read it. In both cases, I’m convinced that counsel benefited their cases, and their clients, by sharing their position statements.
I’ve also seen position statements shared in straightforward cases where liability was clear, and there was no need to pull any punches. In those cases, neither the facts nor the law were in dispute — and the issue was simply a function of damages. In those cases, the position statement provided a concise recitation of the facts and law to which both sides could agree.
I wouldn’t be surprised if these examples have you thinking of when, and why, you might want to consider sharing position statements in future mediations. If you’re considering the tactic, I’d recommend confidentially including a Blind P.S. (and/or any other relevant information you think needs to be communicated) for the mediator.
So the next time you prepare a position statement, ask yourself: “Am I able to advance my client’s interest by sharing it?” If the answer is yes, you know what I’d recommend!