Mediation before a U.S. Magistrate Judge is available in every
civil case filed in the United States District Court for the
District of Massachusetts. While each Magistrate Judge has his or
her own procedural order, each requires some sort of brief
mediation statement to be filed beforehand. This statement is often
the first substantive presentation about the case given to the
mediator, and can be quite effective in shaping the direction of
the mediation. It is not a legal brief and serves a different
purpose than a formal pleading. What follows are some points you
may want to consider in determining what to include in your
mediation statement. The list is not intended to be exhaustive, and
obviously does not supersede any requirements of a specific
mediator.
As an initial matter, it is important to recognize the setting
in which the mediation is taking place. In Massachusetts,
Magistrate Judges serve as trial judges with the parties' consent,
and can be referred any and all pre-trial matters in civil cases
that are otherwise being handled by a District Judge. Magistrate
Judges do not mediate cases in which they are the trial judge or in
which they may be referred substantive matters. This means that
they often mediate cases about which they have little prior
knowledge. Because of this, it is often helpful to have a brief
overview of what the case is really about. This does not mean a
listing of all the legal claims, but rather the factual context of
the dispute and a general description of the relevant legal
framework. It is also helpful to explain the stage of the
litigation in which the mediation is taking place, such as whether
key discovery remains to be done. This information helps the
mediator understand how much proof the parties actually have to
support their claims. It also helps identify which considerations
may be most important to a party in deciding whether to settle,
such as costs of continuing litigation, whether a final resolution
is imminent, and the like.
Each Magistrate Judge has his or her own style of mediation. I,
like many of my colleagues, tend to be facilitative rather than
evaluative, meaning we try and work with the parties to reach a
resolution that meets their needs, rather than ruling on the merits
of the case. It is important to keep the type of mediation in mind,
and to provide the mediator with the information that will be
helpful in reaching a successful conclusion. As a general rule, I
find that since I am not deciding the case, I do not want or need
lengthy legal dissertations. Key cases may be helpful if there are
unique areas of the law, but it is not generally helpful to refer
me to extensive summary judgment pleadings. Instead, it is much
more helpful to inform me about the parties' goals for the outcome
of the mediation. On the other hand, if you feel that a detailed
understanding of the law is necessary for the mediator to help the
parties reach a resolution, include the analysis in your mediation
statement. Just remember the purpose of your statement: it is not a
legal brief, it is a position statement designed to help reach a
settlement.
Because the parties are likely to be meeting the mediator for
the first time at the mediation session, the mediation statement is
an excellent opportunity to provide information about the key
players in the dispute. A great deal of time is often spent by the
mediator at the beginning of a mediation session trying to
determine who the real decision makers are, the relationships
between the parties (both on the same side of the case and between
the sides), and the personal motivation behind the litigation.
Similarly, the mediator needs to determine the relationship between
the attorney and the client: is the client deferring to the
attorney or calling his or her own shots? Has the attorney
explained (and the client heard) the problems with the case, or are
they waiting to hear it from the mediator? Insights that can be
provided in the mediation statement can greatly expedite this
process.
You may also want to consider whether your mediation statement
should be kept confidential. Culturally, in Massachusetts the
statements are kept confidential, although in other jurisdictions
there is a requirement that they be shared. There are certain types
of cases where the factual assumptions are very important, such as
wage and hour cases or cases asserting complicated damage
calculations. It is often helpful to exchange these facts before
the mediation begins.
Finally, the mediation statement can and should be used to
provide any suggestions as to how the mediation process can be most
successful. For example, in a multi-party case there may be
suggestions as to the order in which the mediator should meet with
the parties, or whether certain parties should be kept together or
separated. In some cases, initially meeting with the attorneys and
not the clients, may be most effective. This type of information is
very helpful, and enables the mediator to appropriately structure
the mediation.
I encourage the parties to be honest in their statements. That
having been said, mediation works best if the parties are prepared
to really listen to the other side's concerns and perceptions about
the dispute, and are willing to reassess their positions. As I
always say, I reserve the right to ask parties to pay more, or
accept less, than they say they will do in their mediation
statements. Mediation is a process in which keeping an open mind
greatly enhances success.