What Makes an Effective Mediation Brief?
 

Try to think like a mediator. Do you know what the mediator needs to help you settle your case? If not, ask. If your mediator is not conducting a pre-mediation conference call with you, initiate that call yourself. Then, retain another mediator for the next case, because any good mediator should be convening these calls as a regular part of the mediation process. A preparatory call with each side separately is part of my process and included in my fee. I do not know a reputable, effective mediator who does not do this.

Of course, your mediator will need to understand the basic facts, law, and procedural posture of the case, but an experienced, effective mediator is really interested in discovering the likely barriers to settlement. I am interested in helping the parties resolve their dispute, and I don’t need detailed briefs to do that.

In most cases, an effective mediation brief should take about five pages (1500 words). That’s it. Seriously. Below is a topic outline.

1. Summarize the case, bullet point key factual disputes (attach evidence supporting your client’s position), and briefly discuss key legal issues. This does not mean including a paragraph about the McDonnell-Douglas test in every employment discrimination or retaliation case. It means educating the mediator on any point of law that is particularly important in your case.
2. If you are the plaintiff, summarize the basis for your demand and attach supporting evidence. Demanding $5,000,000 because “that’s what the client wants” (yes, a lawyer told me that) without any rationale is not helpful to the process.
3. Summarize the procedural posture of the case (if a complaint has been filed). What is the status of depositions and other discovery? What are the key deadlines? When is trial?
4. Summarize any settlement discussions. Include each party’s last settlement position and any documentation thereof.

   And most importantly:

5. Summarize perceived barriers to settlement. In other words, why do you need a mediator? If there were no such barriers, presumably, counsel could settle the matter themselves. These usually include personality conflicts, worries about setting a precedent, outside influences, etc. This section will likely be the hardest section for the advocate to prepare and the most useful for the mediator.

What about exchanging briefs? I urge the counsel to exchange briefs in every case. Almost nobody does. If you prepare the type of brief I described above, the only reason not to share the entire brief is if there is something in section 5 that will likely create an additional barrier to settlement if disclosed. In that case, delete that section from the version of the brief you provide to the other side.

I guarantee that submitting a brief like the one I described and exchanging the brief with the opposing party will be invaluable to the mediator you select and make the entire process more efficient and effective.