By Mediator Lee Wallace
Should you bother to write a mediation brief before your next mediation? Here’s how a mediation brief can help you.
What is a Mediation Brief?
A Mediation Brief is a summary of the facts and most important points of your case that you submit to your mediator before mediation. The brief may be an original statement to the mediator, complete with exhibits and case law, but it does not have to be. It can be as simple as something you already have prepared during the litigation. The key is what it provides to the mediator, not what it looks like.
Preparing a mediation brief may seem like an extra burden in your already-loaded schedule. But the task does not have to be that hard; you can find some simple tips in last week’s blog, Easy Ways to Write a Mediation Brief. Can’t find your copy? Reply to this email and I’ll send it to you.
How I Use the Mediation Brief to Help You
1. Focused Mediations.
A good mediation brief teaches me, as the mediator, what the case is about. Just as importantly, it tells me what the case is not about. In most cases, some facts and legal issues are not in dispute.
When I know what we can safely leave out, I can streamline the mediation. I will be prepared with questions about what I do not understand, and I can help everybody hone in on the most important issues that we need to resolve in order to successfully settle the case.
For example, in a car wreck case, if everybody agrees that the defendant caused the accident, we do not need to dwell on the facts of the wreck. We can pivot quickly into causation and damages, which are the points that will make or break the settlement of the case. In a product liability case, if everyone agrees that the plaintiff was severely injured, we can focus on whether the product caused the injuries and whether the product was defective.
2. More Informed Mediator.
One of the most important things that I can offer as a mediator is my 31 years of litigation experience. But in order for me to apply my experience to your case, I need to know the facts of your case.
Once I understand the basic framework of your case, I can more easily grasp the arguments both parties make at mediation. I also can help both parties identify, consider and evaluate the strengths and weaknesses of their positions.
3. Cut Down on Confusion.
As a mediator, it surprises me how often the parties think they agree about something — but actually do not.
Take, for instance, the question of where the settlement discussions stand. Surprisingly often, the parties agree that they have been discussing settlement — but disagree about what has been offered or demanded so far. To keep the mediation from immediately plunging off the rails, I need to know that the parties differ and I need to be able to explain to each side what the other side thinks has happened in the settlement discussions so far. If the mediation briefs show me that the two sides have different ideas of what has been offered and demanded, I know that we need to give that difference immediate attention. And if the two sides agree on where the negotiations stand, I know which party will be the next to make a move — and hence, where to start the caucuses.
The brief also may highlight other disagreements that the parties do not realize are hampering settlement. By the nature of litigation, the two parties are not talking openly, which leads to misunderstandings. For example, if the plaintiff says that causation is not in dispute but the defendant provides two pages of argument about it, I know we need to cover the topic in order to be sure the parties are communicating.