Any great mediation brief should begin with a careful evaluation of your audience. Ask yourself a few questions to understand better who will see your brief. Who is in charge of making the settlement decision? Who is the most important group of people to influence in this document?
Attorneys receive lots of training and spend countless hours practicing to prepare to win appellate briefs, arguments, and summary judgment motions. That said, it’s essential to also focus on the mediation brief. Unfortunately, mediation briefs are either overlooked, prepared at the last minute, or both. However, mediation briefs have much more of an influence on the mediation process than you might think.
It’s understandable to think that every brief must focus only on the mediator. However, this isn’t always the case because every mediation session differs. Fortunately, you can prepare for certain recurring themes and situations by reading this helpful guide. Follow these seven steps to start having an easier time writing mediation briefs.
1. Confidential or Non-Confidential?
Mediation briefs are often submitted to a mediator or panel under strict confidentiality during a typical mediation process. With this strong sense of confidentiality, this usually means that opposing parties never see the other party’s mediation briefs.
Unfortunately, a confidential brief can have its drawbacks. A defendant’s mediation brief must convince the plaintiff’s attorney that they value this case far too highly. This same goal can be achieved by presenting another risk factor that makes a lower-figure settlement discussion the optimal goal.
A defense attorney could prepare a well-written brief that isn’t confidential. In this brief, the defense could present something that might cause the defense to lower their respective client’s expectations. In turn, this creates a substantial potential victory for the defense.
On the other hand, a plaintiff’s attorney could use a non-confidential mediation briefing to influence the defendant’s liability insurer and attorney. This attorney could create briefs addressing liability, damages, and coverage issues. These are all issues aimed at defense attorneys, insurance adjusters, and insurance companies’ coverage attorneys.
It’s understandable to want to create confidential mediation briefs, which will help give a mediator valuable insight. However, confidential briefs won’t help insurance adjusters convince their bosses that covered claims must be taken seriously or that reserves must be increased before mediation begins.
You can present a mediation brief that does everything possible to hold the defendant liable for significant damages successfully. Unfortunately, it won’t be able to influence key members of the defendant’s team if they never see it.
2. When to Send This Document In
When it comes to mediation briefs, timing is extremely important. It’s extremely beneficial to complete and distribute mediation briefs well before the mediation process. In some cases, experienced mediators can start looking at everything and be ready to start mediation the next day.
Imagine you send in mediation briefs three weeks in advance during a high-dollar, complicated case. This gives insurance adjusters extra time to work with coverage counsel and to secure the authority to settle the case. Even if you present a winning brief, it’s unlikely to have its intended effect when you submit it at the last minute.
It’s also beneficial for those on the defendant’s side to get mediation briefs prepared and sent out as early as possible. Doing this can alert the plaintiff’s attorney to problems that call for discussions with respective clients right away. Giving everyone extra time to look at a mediation brief’s details can mean the difference between a settlement and another day spent meditating.
3. Creating the Structure of an Excellent Mediation Brief
Many attorneys often spend time wondering what mediation briefs should look like. With that said, this is a difficult question to answer. There’s no set length or magic word total that will help you create winning mediation briefs.
If a matter is cut and dry, there isn’t often a need to create a long-winded mediation brief. However, if you’re dealing with a complicated subject matter and want others to see what you’ve found, lengthy mediation briefs served in advance are a wise option. Like most legal documents, you’ll want to start with the big picture when it comes to structuring mediation briefs. After doing that, you can begin drilling down your topics to focus on more specific issues.
Certain attorneys find that writing a mediation brief’s introduction takes the longest time. This document’s introduction needs to get lots of information across by using as few words as possible. Also, your introduction should make an impact and influence the reader’s thinking. It’s also a good idea to lead the reader along with information so they can anticipate how the rest of the brief will proceed.
Start your brief with a strong introduction that pinpoints all important issues in a way that gives the reader just enough knowledge without overwhelming them. This also provides the reader with the urge to want to keep reading to find out essential information.
Mediation briefs that start with lengthy backgrounds filled with details instead of something short and well-crafted often do not make much of an impact. If you start bombarding your audience with fact after fact, they will wonder what pieces of information they should cling to.
Another possible outcome of presenting too much information is completely tuning out your audience. If you’ve been in a situation where you’re being presented with endless amounts of information, especially in a short time, it’s easy to feel overloaded fast.
4. Acknowledging Helpful and Adverse Cases
Case law can make a major difference in mediation or the outcome of litigation proceedings. With the exception of complicated cases, one or two essential judicial decisions often justify many discussions in briefs.
If you find a helpful judicial decision goes your way, highlight that case. You don’t want to devalue something of such importance by including it in a lengthier part of your mediation brief or tossing it in with one of many other cases you’re going to mention here.
There’s also the possibility of a case going against you. If this happens, acknowledge the situation and try to downplay its impact on the mediated matter at hand. By only mentioning a positive case and avoiding adverse ones, you’re not sending out the right message.
Adverse cases are out there. When they rear their heads, why not show a mediator that you’ve thought about it beforehand? By limiting the impact of these types of cases, it sends a message to the other party that might throw them off.
5. Discussing Special Factors
Something else you can do to help a mediator is to create a brief that highlights factors that might either promote or hinder settlements. You can indeed discuss special factors with a mediator during the mediation process. However, briefing certain factors in advance might give the mediator an advantage going into the mediation. To put it another way, pre-mediation phone calls that take place between attorneys and a mediator can jump-start negotiations.
You’ll want to take a moment to consider the following examples. Think about a plaintiff’s desire to win money or a defendant’s meeting that recently took place with a bankruptcy attorney. These are all things a mediator would want to know about before a mediation session begins. When good mediators learn this type of information, it also helps all parties move towards a reasonable resolution for everyone involved.
However, if special factors aren’t mentioned, they can backfire. If the mediator begins by speaking to the other party, they could accidentally say something that obstructs a settlement dicussion.
As an example, imagine you’re representing a restaurant in an employment case. During this time, you argue your client is struggling to make payroll. You don’t mention this in the brief because you plan to tell the mediator this during the open offer process. However, the mediator speaks with the plaintiff first and casually mentions eating at that restaurant the night before and how full it was. In a few moments, the mediator has unintentionally unraveled the argument about your client having no money.
During mediation, mediators will want to see histories of previous settlement positions and negotiations in all parties’ mediation briefs. Since effective mediation is about all sides agreeing, achieving this goal is hard if you write hatefully to describe the other party.
When writing about the other party, using neutral language and sticking to the relevant facts is best. For example, it would be good to say that “the defendant began negotiating with an offer of $25,000 and the plaintiff made a counter demand of $100,000.” On the other hand, saying something like “the defendant threw out an insulting offer of a mere $25,000” wouldn’t be the best decision.
It’s also never a good idea to use the word “extortion” in any brief unless you’re specifically working on an extortion case. If you’re a defendant and trying to make a claim that the plaintiff is “extorting” money from your client, this is never a wise idea. And, even worse, a smart mediator might call you out on the use of this term. After that, you’re left looking like you don’t have the clearest understanding of what you’re supposed to be doing.
6. The Impact of Exhibits During Mediation
If you’re looking to make a mediation brief stand out, exhibits are great ways to achieve this goal. With that said, you don’t want to overload your brief with lots of exhibits. Doing this can dilute the impact of the exhibit’s power. To avoid this problematic situation, choose a select few pieces of evidence that either show your client’s strengths or the weaknesses of the other party.
While you’ve likely had weeks, months, or even years to study the details of a case, this isn’t always the same for a mediator. In certain situations, mediators might only have one or a few days at most to go over this case. Considering that, you’re going to make the most impact on a mediator by presenting exhibits clearly and in a way that makes an impact on this individual. You can also do this by cutting down lots of exhibits and only including the most powerful ones.
If you’re working with lots of complex data, consider condensing everything into a chart that’s easier to take in. By taking the extra time to make your exhibits stand out, it can impact the mediator and other parties.
7. Writing Your Concluding Remarks
Unfortunately, many attorneys do not spend too much time or effort concluding their briefs. Inserting a weak conclusion in your brief can have more of an adverse effect than you might think.
Take a moment to put yourself in the shoes of a mediator. You’re reading a 30-page document from a defendant with a seemingly airtight case against an opposing counsel. And, all of a sudden, the defendant’s credibility takes a nosedive when you see their weak conclusion. Saying something like “in closing, for all of the reasons we’ve previously mentioned, summary judgment should be in favor of the plaintiff” creates a conclusion you don’t want on your brief.
To ensure you’re writing an effective conclusion, as they often do, imagine a mediator reading this section of your mediation brief first. Would your conclusion give them a clear overall idea of what the points you’re trying to make? If not, it’s time to look over the rest of your brief and take note of your key points.
You’ll also want to echo the main theme of the case you’re working on. There’s no set theme for every type of mediation. To find out more about this theme, take into account the facts, law, previous negotiations, and the unique personalities of everyone involved. When you know the theme of this case or something else you want to be fresh on the mediator’s mind, insert it into your mediation brief’s conclusion.
Conclusion
It’s understandable to have a lot on your mind while preparing a legal argument for a client. With that said, make sure you’re not just doing the bare minimum to rush this document out. Instead, determine who you want this document to include before the mediation begins. Next, use the mediation brief you’ve created to influence those whose decisions matter the most. Creating an excellent mediation brief will take more time and effort, but the results will make your efforts well worth it.
To learn more about drafting a mediation brief, opening statements, and more, contact ADR Times!
Mark holds a Ph.D. in Leadership (Alliant's Marshall Goldsmith School of Management), an MBA in Finance (Pepperdine’s Graziadio School of Business), a Master's in Dispute Resolution (Straus Institute for Dispute Resolution, at Pepperdine Caruso School of Law) and a BSc in Urban Planning (Cal Poly Pomona).
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