Here’s a confession that might ruffle some feathers in the legal community: I think pre-mediation statements are doing more harm than good to the mediation process.
I get it—pre-mediation statements have been standard operating procedure for decades. Every mediator training program teaches their importance. Legal professionals consider them essential preparation tools, and there’s comfort in that thoroughness. But after mediating thousands of cases and watching the neuroscience research evolve, I question whether these detailed position papers are actually helping us achieve what mediation is supposed to accomplish—or if they’re undermining the very neutrality that makes our work transformative.
The Bias Trap: What Science Is Teaching Us
Picture this scenario, which I know you’ve experienced: Attorney A forgets to send their pre-mediation statement or sends a brief summary. Attorney B submits a meticulously crafted 15-page document complete with case citations, detailed factual narratives, and compelling legal arguments.
As mediators, we want to believe our training makes us immune to these influences. We tell ourselves we can compartmentalize information, that our neutrality is unshakeable. But here’s what neuroscience research is showing us: the human brain simply doesn’t work that way.
Studies demonstrate that initial information creates anchoring effects that persist even when we’re explicitly warned about bias (Teovanović, 2019). When I read about how Party B was “clearly” wronged, complete with supporting documentation, my brain is already forming neural pathways, creating preferences, and developing theories about the case. This isn’t a personal failing—it’s how every human brain functions.
We’ve spent years perfecting our skills while ignoring what science tells us about how those skills actually operate in our minds. It’s time we aligned our methods with what we now know about human cognition.
The Neutrality Challenge: Facing an Uncomfortable Truth
This creates a challenge we need to honestly address. Mediation’s greatest strength is supposed to be our neutrality—our ability to help parties explore their own solutions without unconsciously pushing them toward predetermined outcomes. But traditional pre-mediation statements compromise that neutrality before the process even begins.
Research shows that once we form initial impressions, we unconsciously seek information that confirms our preconceptions while giving less weight to contradictory evidence (Rollwage et al., 2020). I know this challenges how we’ve always practiced, but the science is compelling. When I walk into mediation armed with detailed position statements, I’m no longer that neutral facilitator I trained to be. I’ve become someone who already has a preferred narrative, even if I don’t realize it.
A Science-Informed Evolution: The Minimal Information Approach
What if we evolved our approach based on what we now understand about how brains actually work? Instead of detailed position papers, what if mediators received only essential context—just enough information to understand the general dispute type and prepare appropriate intake forms?
Imagine receiving something like: “Contract dispute between former business partners regarding profit-sharing arrangements. Three-year partnership dissolved in 2023. Parties seeking resolution of financial claims.” That’s it. No detailed narratives, no legal arguments, no lengthy explanations.
I know this feels radical after decades of thorough preparation, but this approach would ensure I enter mediation with genuine curiosity rather than contaminated assumptions. It would force me to rely on the core mediation skills we’ve all worked so hard to develop rather than pre-digested information.
The Neuroscience of Connection: Why Fresh Inquiry Works
There’s something profound that happens when parties explain their situation directly to me. Research on procedural justice shows that feeling heard and understood is crucial to satisfaction with dispute resolution processes (Wood et al., 2020). This isn’t just about making people feel better—it’s about creating the neurological conditions where real problem-solving can happen.
When people share their stories directly, they’re building trust pathways in their brains. They’re activating the same systems that create therapeutic breakthroughs. Compare that to my reading someone’s lawyer’s interpretation of their story. Which approach truly honors what we know about human connection?
This storytelling phase also allows me to observe communication patterns, emotional dynamics, and underlying interests that written statements can never capture. How does each party tell their story? Where do they become animated or defensive? What matters most to them beyond the legal positions?
Embracing Our Highest Skills: The Art of Powerful Inquiry
The most masterful mediators I know share one characteristic: they’re comfortable with not knowing. They ask questions without predetermined answers. They sit with uncertainty. They discover solutions in real-time alongside parties.
Pre-mediation statements can rob us of this dynamic engagement. When we think we already understand the situation, we stop asking the kinds of exploratory questions that create breakthrough moments. We become solution-focused before we’ve truly understood the problems from each party’s lived experience.
Research on therapeutic questioning demonstrates that open-ended, emergent questions are far more effective at promoting insight than those based on predetermined assumptions (Ansems et al., 2021). The skill of asking “the next right question”—the one that emerges naturally from what someone just shared—is infinitely more valuable than the ability to recall details from a position paper.
Redefining Excellence: Evolution, Not Revolution
This isn’t about abandoning everything we’ve learned—it’s about applying what science now teaches us about how learning and connection actually work. Instead of absorbing detailed position statements, we can prepare by ensuring we have appropriate intake forms, understanding the general dispute type, and mentally preparing to facilitate authentic human connection.
As professionals committed to excellence, shouldn’t we be willing to evolve our methods as our understanding deepens? The parties we serve deserve our best work, informed by the best available knowledge about how human brains function under stress, how trust forms, and how genuine insight emerges.
The Courage to Grow
I know this challenges comfortable practices. Change always feels risky when current methods seem to work “well enough.” But as we learn more about cognitive bias, human connection, and the neuroscience of problem-solving, we have an opportunity—maybe even a responsibility—to align our practices with what actually serves our highest aspirations.
Maybe it’s time to trust that our core mediation skills—our ability to listen deeply, ask powerful questions, and create conditions for authentic human problem-solving—are more valuable than our ability to memorize case details in advance.
Perhaps being fully informed as a mediator is overrated. Perhaps our greatest service comes not from knowing all the answers before we start, but from having the courage to ask the right questions along the way.
References
Ansems, L., Tyler, T. R., & Zebel, S. (2021). The importance of perceived procedural justice among defendants with a non-Western background involved in Dutch criminal cases. Frontiers in Psychology, 12, 628284.
Rollwage, M., Dolan, R. J., & Fleming, S. M. (2020). Metacognitive failure as a feature of those holding radical beliefs. Current Biology, 28(24), 4014-4021.
Teovanović, P. (2019). Individual differences in anchoring effect: Evidence for the role of insufficient adjustment. Europe’s Journal of Psychology, 15(1), 8-24.Wood, G., Tyler, T. R., & Papachristos, A. V. (2020). Procedural justice training reduces police use of force and complaints against officers. Proceedings of the National Academy of Sciences, 117(18), 9815-9821.