Producing a Submission for Mediation with Your Neutral in Mind - ADR Systems

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Attorneys should prepare submissions for mediation that are as substantive as the documents they would produce for trial, but with their neutral in mind. In mediation, attorneys advocate for their client before a neutral mediator, whose job is to facilitate negotiation between parties after reviewing submissions. The more a mediator knows about the case from a submission, the more they can help settle it. As such, a well-organized, detailed and yet concise submission is an invaluable settlement tool.

Organize the Submission

Mediation is a relaxed process in comparison to litigation; the rules of civil procedure and evidence do not govern it, making it a malleable dispute resolution tool. This is not, however, an excuse for attorneys to compile a smattering of documents for the neutral to comb through.

Instead, attorneys should tab or number the sections of their submission and label them with specific titles such as “Deposition of Mrs. Smith” or “Specials Summary,” and include a section with documentation of contested damages.

“A well-organized submission, equipped with a table of contents and even an index, is convenient for your neutral, who is reviewing the facts and history of the case for the first time before the mediation,” said Hon. Ronald D. Sutter, (Ret.). “With it, your neutral can more efficiently digest the facts of the case and the documents included in the submission, and easily reference them, empowering them to facilitate negotiations with a full grasp of your case.”

Cite Legal Authority 

A submission’s legal argument has no leg to stand on without citations from relevant case law.

References to legal authority within the submission – and even the inclusion of a full decision from a court — help mediators conceptualize the scope of the case and synthesize its facts within a broader legal context, according to Hon. Brigid M. McGrath, (Ret.).

“Case law is invaluable to the mediator,” she added. “The more we know about a case, and cases like it, the more we can help attorneys and their clients settle theirs. It gives us more to say, especially as we all approach a settlement agreement.”

Include Full Documents over Summaries

When attorneys detail damages or reference the deposition of an expert witness, they should include all relevant documents relating to damages and full transcripts of the deposition, rather than a summary. With submissions, the question is not quality over quantity, or vice versa. Often, they are one and the same.

“It’s hard for a mediator to effectively persuade someone to move off a position if the mediator does not have the objective facts and evidence for them to consider,” said Hon. Larry G. Axelrood, (Ret.). “Summaries don’t often cut it.”

Tell the Client’s Story

Attorneys should prepare a statement of the case that outlines its facts and tells their client’s story.  Often, the human dynamics and human stories at play in the dispute influence the course of the mediation just as much as – and sometimes even more than – the facts contained in the submissions.

“Some parties don’t give much weight to the human story and personality of the clients behind the dispute,” said Hon. Thomas R. Allen, (Ret.). “If neutrals understand the heart of the bad blood between parties, they can tap into and work around what is driving the emotional end of it. This is often where creative solutions to resolve the dispute come into play. It starts and ends with the people involved.”

An attorney’s submission informs the trajectory of the mediation before it begins. Organization, citations, documentation and the story behind the dispute arm the neutral mediator with the information needed to facilitate negotiations. Submissions are critical assets to the neutral, the attorneys and, of course, their clients.


Hon. Ronald D. Sutter, (Ret.) has served the legal community as an attorney, prosecutor and jurist for more than 38 years. As a litigator, he focused his practice in personal injury and insurance matters. Judge Sutter spent 15 years in the DuPage County Circuit Court and was the Presiding Judge of the Law Division.  A popular mediator and arbitrator, he is praised for his integrity, legal ability and temperament.

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Hon. Brigid M. McGrath, (Ret.) has handled and complex commercial and personal injury case types throughout her 34-year legal and judicial career, including professional malpractice, medical malpractice, insurance coverage and product liability matters. As a senior mediator and arbitrator, she is skilled at diffusing conflict and identifying root causes of disputes. Counsel know Judge McGrath will prepare thoroughly for every case and work diligently toward resolution.

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Hon. Larry G. Axelrood, (Ret.) has extensive experience with medical malpractice, nursing home, railroad, legal malpractice, premises liability, construction and personal injury matters. Having served on the Evanston Police Pension Board and the Illinois Judges Association Pension and Benefits Committee, Judge Axelrood also has in-depth experience with pensions and their impact on various types of cases. He is known for his ability to easily connect with and understand the interests of all parties.

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Hon. Thomas R. Allen, (Ret.) has more than 40 years of legal experience. He served most of his judicial career in the Circuit Court of Cook County’s Chancery Division where he settled many commercial and business-related cases. He also served in Probate and has experience with estates and trust matters. Judge Allen brings a tremendous depth of experience to his practice having worked as a litigator for 30 years before becoming a jurist. As a senior mediator and arbitrator, he stands out as an exceptionally intelligent, hardworking and even-tempered neutral.

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