IP Mediation Statements To Settle a Case, or not.

Presenting your IP case to a mediator requires a mix of candor and strategy.  Three approaches are typical in written statements sent to the mediator: (a) argumentative- clipped passages from legal briefs, but captioned as a mediation statement, (b) bold – insisting how great a case one has, or how the opponent better take this chance to settle, now or else, and (c) candid – why the case has not settled, why it can or cannot settle now, and what it will take for the case to settle. 
My preference is the third of these, because the first two focus on the legal and factual strengths.  The third approach spotlights settlement on each of the available pages in the mediation statement.  In my experience, both as counsel and as a trained commercial mediator, a great amount of time spent during mediation discussing the case issues or strengths equates to a small probability of settlement.  Conversely, the case is more likely to settle when more time is spent discussing how to settle it.
What goes in a mediation statement depends mainly on the willingness of the parties to seriously consider each of the settlement options, and to present their thinking to the mediator.  When parties prefer not to settle, or are unwilling to face up to what settlement terms are worth elimination of what amount of risks, then the mediation statement tends to look a lot like a legal brief.  Using the available pages to recite claim construction arguments is like saying – ‘My client has not or can not get down to the business of settling this case.’  Legal arguments usually cloak the message that the party is a no-pay or is demanding full value in settlement, or is proceeding thoughtlessly.
Some courts direct what a mediation statement should contain.  Here is one example, an “honest discussion of the party’s claims and/or defenses, including the strengths and weaknesses,”  an “assessment as to why settlement has not been reached,” and a detailed list of “attorneys’ fees and costs …incurred to date, with a fair estimate of …additional fees and expenses …if the matter is not settled.”  By contrast, the ADR rules in the N.D. Calif. require that much of the content regard the issues and strengths.  In my opinion, the only germane content required is to state the “history and current status of any settlement negotiations and provide any other information about any interests or considerations not described elsewhere in the statement that might be pertinent to settlement.”   Other courts and private ADR providers are more free-form in regard to the content of the mediation statement.
A prime consideration is whether the statements go to the mediator only, or if the parties exchange statements.  Each has pros and cons.  Statements sent only to the mediator may contain exaggerated or incorrect assertions, which may influence the mediator’s neutral viewpoint.  Still, ex parte statements enable a party to be entirely candid about settlement, which is an essential purpose of mediation.  When pre-mediation statements are exchanged, the content and tenor tends to emphasize legal issues, which a mediator should not even attempt to evaluate.

When you want an outline for a mediation statement, start by hearing what your client wants or expects to settle the case, or what they think makes it worthwhile not to settle.  Better to start there than by clipping and pasting sections out of your old motion briefs.