how to prepare a settlement statement for court ordered mediation

Identify key facts, witnesses and documents and list the main arguments on liability and quantum. Be clear about your client’s objectives. Prepare a short case summary for service prior to the mediation. Give consideration to a confidential settlement statement for the mediators’ use only.

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How to write a mediation statement?

The default approach is the latter since the mediation statement serves not only to inform and help the mediator prepare but also to facilitate the exchange of information between the parties in advance of the mediation. If mediation statements will be shared among all parties, be thoughtful about the intent and tone of your statement.

What do you need to know about Property Settlement mediation?

And he or she will make that decision based on the law, rather than what you want. Once you have decided to pursue property settlement mediation, it is time to start gathering relevant financial documents. These typically include bank statements, mortgage papers, stock certificates, superannuation records, and so on.

Why choose court-ordered mediation?

Because most court-ordered mediation requires all the parties (and insurers) to be present, it affords the best opportunity for settlement. With all the decision makers in the same building (or available by phone), issues that present sticking points may be resolved.

How do I prepare for a mediation hearing?

An important goal in preparation should be to enter the mediation process confident enough in one's own understanding of the situation to be open to other participants' points of view and to options that may arise in the course of the mediation process. Parties should also give consideration to what will happen if the case does not settle.

How do you write a good mediation statement?

By Mark A. RomanceBe upfront. Your first paragraph should tell the mediator who you represent, who the opponent is, summarize the claims and explain what is at stake. ... Provide a concise summary of the facts and claims. ... Summarize prior settlement discussions. ... Identify strengths and weaknesses. ... Bring it home.

How do you write an opening statement for mediation?

I'm (Mediator's Name) and this is (Mediator's Name). We will be serving as your Mediators. You may call us by our first names; how would you like us to address you? The purpose of our meeting is to help you work out an understanding acceptable to both of you to resolve the situation that has been developing for you.

What should I do to prepare for mediation?

Tips from a Mediator about how to prepare for the Mediation of your disputeIdentify your key interests in the dispute. ... Be ready to make the first offer. ... Reality check your case. ... Obtain an estimate of the costs of litigation. ... Say something at the plenary session.More items...•

How do you present a case at mediation?

The Best Strategies to Present Your Case In MediationIt Starts with Your Brief. ... Ex Parte Communication with the Mediator is a Good Thing. ... Tailor the Presentation to Persuade Opposing Counsel and Key Decision-Makers. ... Organize Your Files Digitally and Prepare a Settlement Document in Advance.

What should you not say in mediation?

3 Things You Should Never Say in a Mediation Opening Statement1 — “It's all your fault.” ... 2 — “Here is a bunch of new information that changes the value of the case.” ... 3 — “I know we demanded (offered) $x before, but we are going to have to demand more (offer less) now.”

Who gives the opening statement in mediation?

Commercial Mediation: “opening statements” We have “disputes” rather than conflict, “parties” rather than people and “settlement” rather than resolution (despite the blanket term dispute resolution). Mediator websites prime their clients to prepare opening statements(3) as well as written “position statements”(4).

What kind of questions do mediators ask?

Some of the questions that a mediator ought to ask counsel for the parties during the mediation include the following. What are your/your client's goals for this mediation? What would help you achieve your goals? What are the obstacles to resolving the dispute?

How do you talk during mediation?

Consider these tips on mediation preparation to help your client speak during an upcoming session:Explain the Mediation Process Well. ... Be Firm in Your Expectations. ... Make Your Client Comfortable. ... Share Results of Other Mediations.

What do you say at mediation?

Here are some questions to ask yourself in advance;What do you want to achieve? ... What do you think the other person wants to achieve? ... What do you think would make a realistic solution?What can you do to help the other person achieve what they want, and help them to help you to achieve what you want?More items...•

What are the 7 elements of mediation?

The seven elements include interests, legitimacy, relationships, alternatives, options, commitments, and communication. A seven-elements approach can be particularly helpful during pre-negotiation preparation. (Michael L.

Do you present evidence during mediation?

The cornerstone of mediation confidentiality is that information provided in a mediation will not be disclosed, either by the mediator or the parties, without the consent of the parties.

What are the 5 steps of mediation?

of the dispute.Stage One: Convening The Mediation.Stage Two: Opening Session.Stage Three: Communication.Stage Four: The Negotiation.Stage Five: Closure.

How do you write an opening statement?

Opening Statement ChecklistState your theme immediately in one sentence.Tell the story of the case without argument.Persuasively order your facts in a sequence that supports your theme.Decide whether to address the bad facts in the opening or not.Do not read your opening statement. ... Bring an outline, if necessary.More items...•

What is the purpose of an opening statement in mediation?

Why should a Mediator Make an Opening Statement? Asking how many of the participants have been involved in a mediation before is a good opening question. The answer is probably not too many. The opening statement is your opportunity to reduce anxieties and address any concerns about mediation before the session begins.

How can a mediation statement help a settlement?

Mediation statements can serve as a roadmap to settlement by helping parties organize their thinking and shift from positional to interest-based thinking.

What is a mediation statement?

Mediation statements are brief narratives submitted by counsel on behalf of their clients (or by the parties themselves if they are pro-se) to inform the mediator and their counterparts about their case. Historically, mediation statements have been referred to as “position statements,” since they are a summary of demands, ...

What is a relevant market standard?

Relevant market standards and statutes: The mediation statement provides each party with an opportunity to present information that will increase the chance that the discussions will be based on measurable data, or objective standards, as opposed to an unverifiable wish list. Parties can also include relevant statues that would help the mediator and other party understand the legal argument that would build their case should they choose to go to court as an alternative to a mediated agreement.

How many pages should a mediation statement be?

Writing a Mediation Statement. Mediation statements are designed to be a brief (5 pages or less) summary of the background of the case, what the party is seeking to accomplish in mediation, relevant market standards and statutes to inform and persuade, and any areas where the parties might focus their attention to build an agreement.

What is a potential option in a mediation?

Potential options and areas of agreement: While not always applicable, a mediation statement can include potential options and areas of agreement including progress made to date, options that meet both sides’ interests, and process commitments such as a willingness to engage in the mediation in good faith.

What should a case manager do?

Your case manager or mediator should also help both parties establish whether the statements will be confidential for the mediator only or will be exchanged between all parties and counsel. The default approach is the latter since the mediation statement serves not only to inform and help the mediator prepare but also to facilitate the exchange ...

What is a court ordered mediation?

With most states and some federal district courts adopted court-ordered mediation, the well-advised attorney will prepare the client for day of mediation. While insurance adjusters, debt collectors, and other well-seasoned clients may have had numerous encounters with the mediation process, most clients are unfamiliar with the process. It pays dividends to advise your client what to expect and what not to expect during the mediation.

What is mediation in a trial?

Mediation is generally the first time your client meets opposing counsel. Although the client may have a sense of the attorney’s style through pre-mediation correspondence, mediation allows the client to preview what opposing counsel will demonstrate during opening statements and closing arguments. Your client may discover facts and arguments that he had not considered or had refused to consider. Opposing counsel’s presentation may also serve to refresh your client’s recollection as to the events and evidence available to the opposing party. It may also help your client recall some additional facts and evidence that may assist to counter their arguments.

What to know before mediation?

Prior to the mediation, inform your client that the mediator will play devil’s advocate with both parties. As part of the mediation process, each party needs to know the strengths and weaknesses of their case. Compromise can only be accomplished if a party understands that he has something to lose.

What is the role of a mediator in a mediation?

However, it is part of the mediator’s job to drill down on claims and defenses when he is meeting with you and your client alone. It may appear to the inexperienced client that he is advocating and favoring the opposing party. Prior to the mediation, inform your client that the mediator will play devil’s advocate with both parties.

Why is mediation important?

Because most court-ordered mediation requires all the parties (and insurers) to be present, it affords the best opportunity for settlement. With all the decision makers in the same building (or available by phone), issues that present sticking points may be resolved. While the process is long and frustrating, practitioners should resist the client’s urge to call an impasse. If crucial facts and discovery remain to be uncovered, the parties can usually agree under the rules to adjourn the mediation until a later date so the parties can complete discovery that will place the case in a better position of resolution.

What is the job of a mediator?

The mediator’s job is to find some common ground on which the parties will agree to settle. While a good lawyer should impress the mediator (and opposing counsel) of the merits of the client’s case, the mediator is not going decide facts or the outcome. 5. Mediation Often Is the Best Time to Settle.

Why does the court have to approve a settlement agreement?

This is because a court must approve any property settlement agreement reached through mediation. To do so, the court will weigh it against established standards for determining “fairness.” If the court finds that the agreement reached through mediation is not fair, it will not approve the agreement and the whole court proceedings will cost you a fortune.

How to settle a property dispute?

Before you do all of the legwork associated with a property settlement mediation, you have to decide whether it is necessary. This may be an option for you if these tick the following boxes: 1 You have made extra payments on your home loan that either of you can access through redraw. 2 There are sole and joint assets. 3 You both want to have some control over the matter. 4 You are not on good terms or able to communicate effectively.

What documents are required for a property settlement?

These typically include bank statements, mortgage papers, stock certificates, superannuation records, and so on.

What can a mediator do for you?

Even if you are not on good terms, the mediators can help each person recognize the other person’s concerns. If necessary, he or she can then help you think about creative solutions to help you reach a consensus. As long as the agreement you reach is within acceptable parameters, the court will approve it.

What is the next step in a financial history evaluation?

The next step is a detailed — almost forensic — evaluation of your financial history as individuals and as a couple. You will discuss who brought which assets and liabilities to the partnership; who acquired which assets and liabilities during the partnership or marriage; and how they were held.

What happens if you go to court?

If you simply decide to go to court, you relinquish any control you otherwise have over the outcome. It will be up to a family law judge to decide how your property is divided. And he or she will make that decision based on the law, rather than what you want.

When you have paperwork sorted, must you disclose it to your spouse?

When you have the paperwork sorted, you must fully disclose the information to your spouse or partner. He or she must do the same with his or her financial records.

How to start a mediation statement?

This should be short and to the point. This suggestion may seem obvious, but too many lawyers start their statement with multiple paragraphs of background facts without giving a brief summary up front about who the parties are and what the case is about. The mediator is then left to sift through pages of facts and wonder why they matter. Start with a summary of who the parties are and what is at issue before getting into the facts and the details of the claims.

How to conclude a mediation?

For example, if you think starting the mediation with both sides making opening statements would be helpful, explain why and what you hope to accomplish. If you think that opening statements might drive the parties farther apart given the hostilities to that point, or that the parties have seen their lawyers in action and it would waste valuable time, say so. But your conclusion should offer the mediator a suggested starting point to kick off the session and indicate how you hope it will lead to a resolution.

Why is a mediator important?

In a confidential mediation statement, it is helpful to include factual and legal weaknesses to allow the mediator to begin developing a strategy to help both sides compromise.

What is the importance of prior settlement discussions?

Summarize prior settlement discussions. It is important for the mediator to know the history of efforts to resolve the case. This section should be specific as to all demands and offers, including details that affected the prior discussions, such as key rulings or depositions that occurred before or after a demand or offer was made. If no settlement discussions have occurred, explain why. This information will help the mediator craft a strategy in advance of the mediation based on prior efforts.

Why is mediation important in commercial litigation?

Few commercial litigation cases proceed to trial—the risk of leaving the fate of a case to a group of citizens who did not volunteer to decide your case is just too great . Accordingly, mediation is one of the most critical points in a case, and one of the key moments for a lawyer to achieve success in a commercial litigation matter. A good confidential mediation statement can be a roadmap to help the mediator help you obtain a successful result.

What is the key component of a mediation summary?

Identify strengths and weaknesses. This is a critical component of a mediation summary. A good lawyer will not only focus on the strengths of her case but will also recognize weaknesses, whether in facts or law.

Do mediators know the facts?

No mediator will know the facts as well as the lawyers, nor do they need to. The mediator needs to understand the basic facts and background about the parties to develop strategies to help the parties resolve the case. The mediator will not have the patience or need to read an appellate brief.

What is confidential mediation?

Mediation is generally confidential, meaning what is said in mediation by the parties cannot be brought in Court. This allows more freedom in negotiating during the mediation process and can facilitate an agreement between the parties. Prepare to genuinely LISTEN. Prepare to TALK. Prepare to SET ASIDE PERSONAL CONFLICTS.

What is the hidden truth about legal disputes?

The hidden truth about legal disputes: Settling disputes outside of litigation gives the parties a chance to better control their wishes and goals regarding the outcome of the dispute. In divorce and custody matters, NO one knows your family and situation better than you and your ex. When parties fail to agree, they must pay heavy attorney’s fees to proceed to litigation where a judge, who barely knows the family, will to his or her best to settle the dispute for them. Many times the parties get less than what they would have bargained for in mediation if they had settled the dispute themselves with a trained and impartial mediator.

How to make demands without explaining your reasoning?

Prepare proposal (s) for the other side. Be prepared to talk about your goals and explain WHY those goals are important to you . Making demands without explaining your reasoning does not elicit understanding and agreement, and will hinder a successful mediation with the other party.

How to deal with a divorced parent?

Some Things to Keep in Mind. 1 Children with parents involved in contentious custody or divorce litigation can develop emotional scars that they may never overcome or last well into adulthood. Reaching agreements in mediation and learning how to co-parent together provides the best situation possible for children. 2 Divorce litigation incurs heavy attorneys’ fees, which subtracts from the marital assets. That’s right, many times parties spend so much money on litigation that they significantly dwindle marital assets or funds that would have otherwise been available for the children. When both parties act fairly in a divorce and resolve their own disputes, they end up having more assets to split between themselves. Many times parties spend more money in the process of litigation than they will gain from that which they are fighting for. 3 There can be emotional closure and peace when parties resolve issues themselves in mediation. 4 Mediation is generally confidential, meaning what is said in mediation by the parties cannot be brought in Court. This allows more freedom in negotiating during the mediation process and can facilitate an agreement between the parties.

What happens when both parties act fairly in a divorce?

When both parties act fairly in a divorce and resolve their own disputes, they end up having more assets to split between themselves. Many times parties spend more money in the process of litigation than they will gain from that which they are fighting for.

What is a mediation brief?

A mediation brief is a disputing party’s opportunity to provide information to the mediator before the mediation. Most employment mediations are only three hours long. It is therefore imperative that the mediation brief be concise and persuasive, with supporting documents, so that the mediator can come to the mediation with an understanding of the case, and focus their efforts on assisting the parties in reaching a resolution.

Is there a winner or loser in mediation?

There are no “winners” and “los ers” in mediation. Disputing parties are most likely to reach a mutually agreeable solution if they come to the mediation with a realistic view of the strength of their case and what they might deem an acceptable settlement. Any potential settlement must be considered against the prospect of going to trial and the likely results of a trial. Avoiding adversarial language and indicating a willingness to reach a resolution are also vital.

How to prepare for mediation?

Determine who should attend the mediation, and how they will participate. Presentations by a client can be very effective. Discuss the mediation process with your client, so they know what to expect. Always ensure that you have sufficient authority to settle the case. If you have any doubts – tell the mediator.

What do most mediation providers suggest?

Most mediation providers will suggest a mediator or provide a selection of suitably experienced mediators from their accredited panel. Check the mediators experience, qualifications and insurance. Review the mediation procedure.

How to prepare for a trial?

Remember that the session involves a discussion of the case rather than a presentation of the evidence as would be expected at a trial. Identify key facts, witnesses and documents and list the main arguments on liability and quantum. Be clear about your client’s objectives.

Do mediation sessions result in settlement?

Finally, keep in mind that the large majority of mediation sessions do result in a settlement. Even where no settlement is reached, the number of disputed issues is usually reduced. Invariably, you will have learnt more about your opponent’s case and perhaps observed new aspects of your own.

How to prepare for mediation?

Be prepared for mediation. Spend energy and time thinking through and discussing your approach. Consider options, alternatives and "what ifs" in advance.

What is mediation process?

There are many definitions of the mediation process. Perhaps one of the most accurate, certainly the simplest, is that it is "assisted negotiations". Recognizing that this definition does not provide new participants with much guidance on what to expect and how to prepare for mediation, please consider the following guiding principles, written both for parties and their representatives. We think that the more attention you pay to these principles, the greater the likelihood that your dispute will be resolved in a satisfying manner.

How to achieve a satisfactory outcome?

The way to a satisfactory outcome is to determine beforehand what range of outcomes would be acceptable to you. The range (s) that you create (and keep to yourself) gives your negotiations a flexibility which often is necessary for a successful resolution to be obtained. If you accept that it is rare that the "winner takes all", you will appreciate that a structured negotiation forum like mediation offers you more, not less, than any other way of resolving your dispute.

What happens at mediation and arbitration?

At mediation, the mediator will not impose a decision upon you, but you may have to make tough decisions relatively quickly in order to resolve the dispute. You may not get everything you want.

What is listening to mediation?

Listening is to mediation what location is to real estate. And focus on the problem, not on the people associated with it. Watch those tactics. Remember that mediation is not well-served by many tactics borrowed from litigation. Consider how you would react to what you are planning to do.

What is the image of the zone of agreement?

An image that assists in seeing the possibilities is "The Zone of Agreement", an elliptical shape with the parties at the right and left axes. The outcome (s) they negotiate are not a single fixed point within the zone; rather, depending on how the negotiation proceeds, outcomes are variable.

What is the key element of a successful mediation?

A key element of a successful mediation is for all parties to be as prepared as possible, which includes having a good understanding of the viewpoint of the other parties, which in turn enriches private deliberations aimed at reconciling as many interests as possible.

Is It Really Necessary?

Making Required Disclosures For Your Property Settlement

Evaluating The Past and Looking to The Future

Establishing Realistic Parameters For Property Settlement

• When it comes to a mediated property settlement it’s important to differentiate between what you want, what you agree to, and what is realistic. This is because a court must approve any property settlement agreement reached through mediation. To do so, the court will weigh it against established standards for determining “fairness.” If the court fi...

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