It is a pleasure to receive a pre-mediation memoranda well in advance of a mediation. It makes my life easier, but more importantly it makes me more effective. It’s difficult to be a participant in a sport when you don’t know the goals, objectives, or the players. A pre-mediation memoranda gives the mediator insight and an opportunity to hit the ground running.

A good memoranda sets out the history of the case, the parties, their interests, the points of agreement and disagreement, and a suggested plan or desired outcome. When all of these items are present, it demonstrates to the mediator that counsel has a thorough understanding of the case and is actively working towards a resolution.

On the other hand, I am usually disappointed when an attorney declines to prepare a memoranda. It’s difficult for any mediator to walk into a mediation cold. After all, the parties and their counsel are intimately familiar with the facts, law, and competing interests. They know where the other side’s buttons are and how to push them. Keeping the mediator uninformed often times results in the mediation taking longer in order to bring the mediator up to speed and sometimes makes the mediator less effective.

When I receive a pre-mediation memoranda, I read it, diagram the parties and their causes of action, and take thorough notes on each issue. From there, I contemplate and draft strategies that will help the parties work towards a settlement. At times, my yellow legal pad looks like a bad copy of a Jackson Pollack painting, however I have found this process to be effective.

Silence is not necessarily golden

There are several reasons why an attorney may opt not to provide a memoranda. Some attorneys don’t have the time to prepare one. Others have clients who find it hard enough just to find the money to pay for the mediation, much less a memo.

In my view, the memoranda is not a luxury. It is part of the mediation process. For those clients who don’t want to part with the money, their logic is flawed. A mediator who reads a memo before hand will be ready to delve into the substance of the issues. While a mediator who learns about the case for the first time during the opening session will need more time to become familiar with all of the parties, the facts of the case, and its history. Either way, the money is going to be spent so it should be spent wisely.

Make your pitch

As a matter of course, an attorney should be eager to submit a pre-mediation memoranda. It presents counsel with a chance to hone down the case and focus on the issues that are important. It also presents counsel with the opportunity to demonstrate the correctness of their position, the nuances of the case, and the reasons they are entitled to the relief sought.

When I served on the bench, I once had a discussion with a colleague who was responding to a media inquiry. He pointed out that the press was going to write its story regardless of whether the reporter actually spoke to him, and he wanted to get his own "spin" on it. That made a lot of sense.

The same holds true for mediation. An attorney should want to inform the mediator about their side of the case. Some attorneys might consider it a form of manipulation. I’ve read and written so many memos and orders in my legal career that I am adept at separating fact from fiction, so manipulation is the least of my worries.

Do it

Let me be direct - prepare a pre-mediation memoranda for the mediator. It makes no sense to keep the mediator in the proverbial dark until the commencement of the mediation. Counsel should do everything possible to keep the mediator informed and up to speed prior to the commencement of the mediation.

Typically, court hearings are limited in time and scope. An hour or more may be set aside just for a singular noticed motion. In mediation, the entire case is open for discussion. A memoranda that fully informs the mediator about the dispute will make for a better mediation and help to increase the chances for a settlement. It’s that simple.