Mediation Possibilities 3

Happy New Year everyone. This is my third blog post on the topic of mediation possibilities. The idea of this series is to consider all of the implications of treating mediation as a process, not merely an event. My first post introduced this idea and the second post discussed pre-session calls. In this post, let’s talk written mediation submissions. Written submissions are a critical strategic opportunity in the mediation process. Here is a chance to show and tell your perspective on the entire dispute, including legal issues and all other concerns, whether business, emotional, personal or anything else, in a way that is free from local court rules or rules of civil procedure. These submissions help determine the tone of the session, which issues will be significant, what each side will try to achieve at the mediation and even potentially authority levels. Here are the most significant structural choices to be made in designing this part of the pre-mediation process: shared or mediator’s eyes only submissions (or shared with a confidential supplement); simultaneous or sequential briefing or both (in two rounds); and timing (if you want the submission to influence how the other side negotiates, you need to submit far enough in advance for the other side to socialize the submission through its authority process, particularly if you will be negotiating with an insurance company). Written submissions can serve multiple purposes if the parties consider all their options and work with the mediator to design this phase of the mediation process. Too often, parties default to confidential briefs submitted at the last minute. All too often, what is submitted in confidence contains nothing that is truly confidential and the mediator will spend the early hours of the mediation talking to each side about what was written “confidentially” instead of moving the dialogue forward. All too often, there is some component of genuine misunderstanding that an appropriate use of submissions can help clear up. Most importantly, in order to negotiate skillfully and successfully, you must take into account the other side's views. And the best way to prepare for this is to receive those views in advance, in writing, with adequate time to digest those views and take them into account in your strategic preparation for the session. The other critical component to all of this is knowing in advance that the mediator will make use of the submissions in a productive way and spend the time to become intimately familiar with the dispute as articulated by the parties. In sum, submissions matter. Be strategic about them and give thought to how the submissions can help set up the session productively. By the way, feel free to reach out to me with any questions at anadolna@jamsadr.com. I love helping people get their arms around every aspect of the mediation process.