What’s the point of a mediation brief? And is it really worth your time?
What’s the point of a mediation brief? And is it really worth your time?
By Mediator Lee Wallace
When I speak on mediation at CLE seminars, I see eyes roll the minute I start talking about a “mediation brief.” I get it.
Who has time to create a special brief for the mediator?
The good news is that a mediation brief doesn’t have to be a specialized, formal document. In fact, you probably have most of what you need sitting in your files. There are a number of 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. Forget the bells and whistles, because nobody is going to look at the brief except the mediator.
A. 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.
B. How I Use the Mediation Brief to Help You.
You want to send the mediator a brief in order to teach your mediator about the case, focus the mediation, and cut down on confusion.
1 — 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.
2 — Focused Mediations.
A good mediation brief also teaches 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 how the wreck occurred. 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. In a qui tam case, if the parties agree that the conduct violated the FCA, we can concentrate our energies on damages and the question of over what span of time the conduct occurred.
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 mediation briefs 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 have communicated and properly evaluated the risks in the case.
Mediation briefs cost you preparation time on the front end, but they increase the efficiency of the mediation and save time on the back end. And writing one does not have to be hard or time-consuming. In my next blog, I will talk about how to hit the “easy button” when you write your mediation brief.
What Attorneys Are Saying About Mediating with Lee:
“Lee’s vast experience as a practicing attorney gives her credibility with clients who listen, because they know she knows what she is talking about. That said, she never tries to tell clients what to do and is very respectful of their reasoning and particular situations. Lee truly cares about other people and that compassion will serve her well in helping them get the best results. Lee is a great mediator and I hope you will grant her the opportunity to try to resolve your case as well.”
– A. Bronsted
“We’re going to ask for Lee again, and again, and again!”
– S. Mahoney
I recently had the pleasure of having Lee Wallace serve as a mediator for a difficult wrongful death case. A prior mediation had failed, so I had little hope that this ensuing mediation would be successful. Indeed, there were several times that my client was ready to terminate the mediation, but Lee counseled us to stay. Ultimately, while it did not settle that day, she established a framework that allowed the parties to settle the case soon after the mediation concluded that day. Lee did a great job of staying with the matter and seeing it to conclusion. I highly recommend Lee as a mediator.
– P. Strott
Lee Wallace is both a brilliant lawyer and a very nice person. She gives her all to a mediation assignment. She is a hard worker, with a very quick mind, who is able to thoroughly understand the important aspects of even very complicated factual situations and knows how to apply the law to them. She got my difficult case settled and I will not hesitate to seek to use her again.”
– K. Pollock
“I recently had my first mediation with Lee Wallace, and I must say it will not be my last. She did a great job facilitating negotiations, and helped each party grasp both the strengths and the weaknesses of their arguments. I would not hesitate to recommend Lee Wallace as a mediator for your case!”
– B. Collins
“Lee Wallace exceeded all my expectations as a mediator in a Personal Injury suit presented before her. Lee’s experience, education and demeanor was amazing and she gained trust from both parties at the very beginning. Not only was she polished and highly professional, she was thorough and did not waste time bringing the mediation to a successful conclusion. Overall a very pleasant experience and my client was pleased with the result as well.”
– D. Russell
“Lee had the intellect necessary to get a really difficult case settled even where the odds were stacked against her. I would use Lee to mediate any of my cases.”
– A. Joffe
“Lee helped get a case settled that I never would have imagined would have settled that day when I walked into that mediation. Opposing counsel and I had drastically different views of the case, as did our clients. Yet, with Lee’s knowledge, experience, and preparation, she was able to lead us to a resolution that my clients were satisfied with. I look forward to using Lee again in the future!”
– A. Grubbs
“Lee’s calm reasoning and creative solutions helped us to resolve a challenging case when one side was willing to walk away and the other side would not budge on their number. She worked hard to find a compromise when none seemed possible.”
– B. Strothers
“Lee brings to her mediations a wealth of experience from which all parties can draw. Her impressive ability to marry the case facts to negotiation strategy aided in the just resolution of our case.”
– N. Campbell
“Lee was prepared, having read all the documentation I had forwarded her pre-mediation, and she did an outstanding job in getting a difficult case settled. I look forward to using BAY Mediation and Lee in the future.”
– M. Smith
“Lee Wallace helped us resolve a case that I did not believe could be resolved. As an initial challenge we had multiple parties, several of whom had to join by remote video conference. The details of the case were also challenging [and] there were widely disparate views regarding case value. Lee was resolute, objective, and prepared. While her 30 years of trial experience and breadth of knowledge on a variety of legal issues were invaluable, her kind and logical demeanor got this case resolved. I must confess at one point I was ready to storm off myself in frustration at the other party, but Lee encouraged me to stick with it and keep working. I’m so glad she did!”
– A. Long
“It was a pleasure working with Lee T. Wallace during the mediation process. She pushed both sides to continue to fight through the process and not give up. And because of her vigorous determination I was able to settle my client’s claim to their satisfaction.”
– S. Carson
“Lee did an effective and efficient job getting this case to a successful resolution. She takes a low key approach to make sure each side does not feel undue pressure to increase their offer or decrease their demand. I will definitely use Lee for future mediations.”
– J. Brown