BY GREG REGER
Rule 2.7 (C) of the Indiana Rules of Alternative Dispute Resolution allow for the submission of a confidential statement or brief to the mediator. Attorneys take various approaches when drafting the submission. Here are some pointers we have found helpful:
- Keep the Statement under 10 pages – You may also have to include key exhibits but make sure the statement stays readable, brief, and targeted.
- Succinctly Summarize the Procedural Status – For example, if a summary judgment motion is pending, let the mediator know.
- Let the Mediator Know the Respective Settlement Positions – The mediator will then know where to move to get the case resolved.
- Attach Financial Damages with Specificity – Do not be vague about the damages sustained.
- Consider Stating Your Liability Position With Weaknesses – You may consider letting the mediator know your weaknesses to maintain credibility.
- Pick Your Most Persuasive Exhibits – Do not inundate the mediator but try and focus on setting out your most persuasive exhibits.
- Consider Offering a Solution – Let the Mediator know a path to settlement that works for your client.
- Obtain Client Input – Let your client review the submission and obtain his/her thoughts and suggestions before sending.
- Agree With he Opposing Party on Numbers ahead of Time – During discovery and the exchange of special damages, try and come to an agreement before mediation to prevent surprises.
- Never state Your Bottom or Top Number in the Statement – Always leave some room to adjust to the circumstances of the Day.
We hope this helps when you are drafting a mediation submission and leads to a successful day.