The Pre-Mediation Memorandum
A pre-mediation memorandum or brief outlines the facts and issues of your dispute for the mediator. If a case involves substantial amounts of money or property or significant legal issues, many mediators require or encourage the parties to submit a memorandum.
On the other hand, community mediation centers often do not allow the parties to submit briefs because many of their cases concern relatively minor disputes and parties might not have the time or resources to prepare a memorandum.The mediation rules will probably tell you the procedures and deadlines for submitting the memorandum; if not, look in the notice of mediation or the mediation agreement. If you can’t figure out whether you have to submit a memorandum, ask the mediation service or mediator. If you have the opportunity, it is almost always worthwhile to submit a memorandum, even in small disputes—you can adjust the length and complexity of the memo to fit your situation.
1. Purpose of the Memorandum
The purpose of the memorandum is to tell the mediator about the basic facts and issues that will be addressed in your case. The memorandum can be especially useful if the dispute involves legal or technical issues, or complicated facts. You can attach copies of legal statutes, technical papers, contracts, or other important documents—like building codes or project specs—with relevant sections highlighted. This will help bring the mediator “up to speed” before the mediation begins, which will save you time and money (if you’re paying by the hour).
2. Submitting the Memorandum
If a memorandum is required or allowed, the parties typically have to submit it a week to ten days before the mediation. In some cases, you will be writing your memo for the mediator’s eyes only. Under some mediation rules, however, disputants are required to exchange copies of their memos. If you will be exchanging memos, be especially careful to use neutral, noninflammatory language.
Mudslinging or needless accusations may trigger an equally nasty reply from the other side—and doom the mediation before it even gets started. Even if the other party won’t see your memo, it’s still a good idea to state your position calmly and objec- tively—you will seem more credible and reasonable to the mediator.Q Don't exchange memoranda if it isn't required. If the rules don’t require you to exchange memos, we recommend that you don’t. While you do want to educate the mediator, there is no sense in showing the other side exactly how you intend to present and support your point of view before your session even begins. If you want to keep your memo confidential, write at the top that you are submitting it in confidence to the mediator and do not want it shared with the other party.
If you do exchange memos with the other party, the contents are subject to the mediation rules on confidentiality. Under most rules, the other party would not be able to use the information in your memorandum against you in any other proceeding, such as an arbitration or trial.
3. Contents of the Memorandum
A good memorandum is short, usually just a few pages in length, unless it concerns a very large and complex case. (Remember, if you are paying hourly fees for your mediation, this will usually include the time a mediator spends reviewing materials before the session—including time spent reading your memo!) Your memo should give the mediator a sense of what the dispute is about and highlight any technical issues that may require some advance study. Because the mediator doesn’t have the power to decide anything, there is nothing to gain by arguing your points in detail or including lengthy legal-sounding discourses. (If you have a lawyer who will prepare and submit the memorandum for you, ask the lawyer to keep it short; you don’t want to pay for the preparation of a court-style memorandum or brief.)
Think of your memorandum as a terrific chance to make a good first impression on the mediator.
Present your information clearly and with some passion, but without sounding strident or unreasonable. Don’t lie or overstate your case. As one mediator put it, “If I find I can’t have confidence in what one of the parties says to me, if I have to be skeptical, then just as a human being, my heart won’t be in it and it becomes that much more difficult as a professional to do my best for that person.”There is no official format you have to follow in preparing the memo. You can print out or type your memo on plain white paper. You should include the following information:
• Undisputed facts. Begin by giving the mediator a quick overview of what your dispute is about, starting with the facts everyone agrees on. For example, “ABC Manufacturing Company makes wood furniture for residential and commercial customers. From 19972004 (May), I was employed at ABC as a lathe operator. My immediate supervisor was Mr. Gene Dowl. On May 3, Mr. Dowl informed me in writing that I was being terminated in ten days because of ‘sloppy work.’”
• Disputed facts and issues. Clearly explain what the dispute is about. For example, “When I asked Mr. Dowl what he meant by my work being ‘sloppy,’ he said I made too many errors on the Royal Oak account (1,000 lots of sculpted chair legs). However, my work is always good and I wasn’t sloppy on the Royal Oak job. I think his real reason for firing me is that he overheard me talking with other employees about how we didn’t like working with the cheaper wood the company has been buying and how it’s unsafe to make furniture with wood that could easily crack and break. I think I was fired to keep me from talking about this problem.” After you have explained the dispute from your point of view, don’t provide a series of arguments and justifications as to why you are in the right and the other party is a dishonest so-and-so. Again, the purpose of your memo is simply to tell the mediator what your dispute is about, not to show that you are correct and the other side is wrong.
• Desired result. State in general terms what you hope to achieve from the mediation. For example, “I am coming to mediation because I want my job back at ABC. I am willing to sue over this if I have to, but I am willing to try to work out a settlement as long as (1) I get my job back with no penalties, and (2) Mr. Dowl is no longer my supervisor.” There is no need to go into great detail or to disclose your bottom line.
• Attach key documents. To help the mediator prepare for your case, include copies of any documents that are especially important. These might include laws, court decisions, contracts, company rules, insurance policies, leases, and so on. Use a yellow marker or similarly readable highlighter to mark the important passages.
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