By Mediator Lee Wallace
Mediators often talk about wanting to receive a “mediation brief” before the mediation starts. The term is unfortunate because it implies the mediator is expecting a specialized, formal document. Faced with writing (and billing for) yet another formal, legal document, many lawyers elect not to send anything at all to the mediator.
Today I want to talk about some down-and-dirty ways to get mediation briefs done without spending a lot of time on them. The key is to focus on the real purpose, which is to communicate information about the dispute to the mediator, in advance. Nobody is going to look at the brief except the mediator. You do not need a work of art.
In fact, your mediation brief — or at least the bulk of it — is probably already sitting in your files. Try looking at these documents:
(1) Demand Package.
Before a mediation, one of the most useful pieces of information I can get is a detailed demand package. If you are the plaintiff and you already have prepared a demand package that explains what happened, describes the injuries, and enumerates the damages, you essentially have a mediation brief ready to go. I would appreciate your adding a sentence that tells me where the parties currently are in the settlement discussions.
(2) Response to a Demand Package.
If settlement discussions have been ongoing and you are the defendant, you may have a detailed response to the plaintiff’s demand package. You can send me that response to show me your positions.
(3) Facts Section from a Brief You Have Submitted to the Court.
If you have briefed any issue to the court, you probably included a facts section to give the judge an understanding of the case. Copy and paste that fact section into your mediation brief.
(4) Law Section from a Brief You Have Submitted to the Court.
If your case involves a dispute about what the law is, you may have briefed the issue to the court already. Again, copy and paste the relevant sections into your mediation brief.
(5) Pretrial Order.
If trial is on the horizon, you may have prepared your pretrial order. You can copy and paste key parts, such as the “brief and succinct outline of the case and contentions,” “specifications of negligence, including applicable code sections,” and information about damages.
(6) The Complaint and the Answer.
Given the advent of notice pleading, the complaint and answer may be very vague. But if they have some facts, they may be a good start.
(7) The Incident Report.
For many cases, someone made an accident or incident report that gives the basic details of what happened. If so, send it.
(8) Key Exhibits.
If you have a photograph that is worth a thousand words, or a smoking gun memo, send me a copy. If it will not be obvious why the exhibit matters, you can send me a quick note about what you want me to look for in the exhibit.
(9) Key Cases.
If your case involves a dispute about the law, you may have already uncovered a critical case in your research. Send me a copy of the case. It will help if you can give me a heads up on which sections of the case are the most important to your argument.
Keep the Brief Short
Remember that mediators charge for reading the materials you send. You want to send all of the material that will be helpful — but nothing more.
If you are having trouble deciding whether to send something, err on the side of sending it. If I need to read the document at the mediation, everybody has to sit there and wait for me — so the cost is not just my time, but everybody’s time.
Send Your Mediation Materials In Time
If I get the material several days before mediation, I can plan my schedule to be sure I have time to concentrate on what you send me.
The purpose of a mediation brief is just to get information to your mediator, so that the day can go quickly and smoothly. Even when time is short, you can use these simple ways to fill your mediator in on the details of your case.