A mediation in a technical dispute tends to open the same way. Both sides have retained experts, the experts disagree, and the first several hours go to establishing facts that are not really in dispute at all — which version was deployed, what the log actually records, whether a particular field was ever populated. By the time the parties reach anything a mediator can work with, the day is half gone and the clients have watched their counsel argue about schema.
This is avoidable, and avoiding it is a drafting exercise rather than a negotiating one. The technique is to separate the technical questions that are genuinely contested from the ones that are merely unestablished, and to settle the second category in writing before the session. What follows is how to do that.
§ 01 · Two kinds of technical disagreement
Technical disputes carry two different disagreements that look identical from the outside. The first is a real conflict of interpretation: the same artifact supports two defensible readings, and which reading prevails decides something material. The second is an information gap — neither side has actually established the underlying fact, so each has assumed the version favourable to it, and the assumption has hardened into a position through repetition rather than analysis.
The second kind is far more common than counsel expect, and it is the one that consumes mediation time. It is also the only kind that can be resolved by agreement, because nobody is defending anything: once the fact is established, both sides simply adopt it. The whole value of pre-session work lies in sorting one from the other, and in disposing of the second category on paper where it costs an hour of an associate's time instead of a morning of everyone's.
The sorting question is concrete. For each technical proposition either side intends to rely on, ask: if a neutral examiner looked at the artifact tomorrow, would the answer be contested, or simply known? The known ones belong in a stipulation; the contested ones belong in the session, where a mediator can work with them.
§ 02 · The process is the parties’ to design
Counsel often treat the shape of a mediation as fixed, and it is not. JAMS describes the position plainly in its own guidance: before mediation commences, the parties and the mediator agree upon the procedures that will be followed, and it is the parties’ proceeding — they can fashion it in any way that makes sense to them and the mediator. Most providers say some version of the same thing, and a pre-session call with the mediator is the ordinary occasion for it.
That latitude is the licence for everything in this piece. Nothing obliges the parties to arrive with their technical positions unreconciled, and nothing prevents them from agreeing, in advance and in writing, what the record shows. The reason it rarely happens is not that it is disallowed. It is that nobody proposes it, because the pre-session exchange is treated as a formality to be completed rather than a stage of the process to be used.
§ 03 · The shared statement and the confidential statement do different work
Pre-mediation statements are a genuinely under-taught genre. An empirical study of the practice — surveying experienced mediators and litigators on what they actually want to read — found that litigators receive little formal guidance on drafting them, that there are no standard templates or requirements of form or substance, and that neither law schools nor law firms provide much training in the format. The consequence is that most statements default to the shape of a brief, which is the wrong shape.
The same study distinguishes the topics that belong in a statement exchanged with the other side from those that belong in a confidential submission to the mediator alone. The shared document carries the summary of relevant facts, the key players, the procedural history, the critical legal issues, and the history of settlement discussions. The confidential document carries the weaknesses of your own case, the strengths of theirs, your underlying business interests, and the personalities in the room.
That division maps cleanly onto technical material. The established record — what the system is, what the logs cover, which artifacts exist and which do not — belongs in the shared document, because its whole purpose is to stop being argued about. Your expert’s view of where your technical case is weak belongs in the confidential one. Mediators press for shared statements so that both sides, clients included, arrive having considered the same account; the technical record is the part most likely to be identical and least likely to have been read.
The question is not whether the parties disagree about the technology. It is whether they disagree about it for a reason. Most of the time, on most of the facts, they do not — they have simply never checked.
§ 04 · Drafting the stipulation
First, exchange a list of technical propositions rather than a technical argument. Each proposition should be a single falsifiable sentence — the production database ran version 4.2 between March and July; the access log retains ninety days; the model was not retrained during the period in issue. Argument invites rebuttal; a list invites a mark against each line.
Second, have each side mark every proposition agreed, disputed, or unknown. The three-way mark matters. A two-way agree-or-dispute forces a party to contest anything it has not verified, which manufactures conflict out of ignorance. "Unknown" is the honest and useful answer, and it identifies precisely what someone needs to go and check.
Third, resolve the unknowns by inspection rather than by correspondence. Most are answerable by one person looking at one system for twenty minutes. Where they are not — where establishing the fact needs access to material one side holds — that is the point at which a neutral technical examiner, appointed for the narrow question only, is worth more than another round of letters.
Fourth, write the agreed propositions into a joint statement of the technical record and attach it to the shared pre-mediation statement. Keep it factual and keep it short. It is not a stipulation of liability, it draws no conclusions, and it should be readable by the clients — who are, after all, the people about to authorize a number.
Fifth, list what remains genuinely contested, with each side’s position in a sentence. That list is the technical agenda for the session, and it is usually far shorter than either side expected. Handing the mediator a two-item agenda instead of an undifferentiated dispute is the single most useful thing counsel can do in a technical matter.
§ 05 · What not to stipulate
Three limits are worth stating, because the technique fails when it is over-applied. Do not stipulate to characterizations. "The log shows no unauthorized access" is a conclusion; "the log covers the period and records these event types" is a fact. Only the second belongs in a joint statement, and conflating them is how a party ends up conceding the matter in an annexe.
Do not stipulate around an absence. Where a record does not exist, say that it does not exist and say why — rotated, never enabled, out of scope. An agreed silence about a missing artifact reads, later, as agreement that the artifact was unnecessary, which is a different proposition and one a party may badly want to contest.
And do not use the exercise to conduct discovery. The purpose is to remove uncontested facts from the day, not to obtain material the other side has declined to produce. A stipulation process that becomes a document request will collapse, and take the goodwill of the session with it.
The underlying discipline is old and applies well beyond technology: establish what is known before negotiating over what it means. Technical disputes make it harder to observe, because the facts are effortful to establish and the effort falls on people who are not in the room. They also make it more valuable, because a mediation that opens with an agreed record opens on the actual disagreement. Send the list first. Most of it will come back agreed.
Draws on the JAMS Mediation Guide (jamsadr.com) on party-designed procedure; Steven Gilford, "Planning for a Successful Mediation: Best Practices for Developing a Mediation Strategy," JAMS (November 25, 2019), on substantive pre-mediation statements shared between the parties; and Brian Farkas & Donna Erez Navot, "First Impressions: Drafting Effective Mediation Statements," 22 Lewis & Clark Law Review 157 (2018), for the shared/confidential division and its empirical survey of what mediators want to read. Forensic material as an affirmative mediation asset is treated in № 002; selecting a neutral examiner is treated in № 008.