Category: Mediation

In the majority of cases, the parties to mediation ask the neutral for an evaluation of their case. This will encompass an analysis, inter alia, of the factual allegations, defenses, and issues of law, motion practice/decisions, venue/jury pool, and an evaluation with respect to jury verdict potential. The mediator will be making an assessment of the evidence to be presented and will give an opinion with respect to the credibility of potential witnesses based upon a variety of factors, including but not limited to, interest in the outcome of the proceeding, strength of deposition testimony, and whether such testimony will be supported by documentary and real evidence. It is to your advantage to give careful consideration as to the information provided to the mediator before the session.

The goal of counsel in advance of the mediation should be to educate the neutral as much as is reasonably possible with respect to the status of the litigation, facts of the case, the relative positions of the parties, issues of law, and damages sought. It is to your benefit that the mediator be properly informed prior to the mediation as it will lead to the savings of significant time during the course of the session, a better understanding of your position and allow the mediator to make a reasoned evaluation of the case.

The process of ensuring that the parties will get an informed evaluation begins with the brief submitted prior to the mediation. In any complex matter, the parties should submit a mediation brief to give the mediator an opportunity to analyze the matter before the mediation session. It is to your benefit to submit your brief well in advance of the mediation to give the mediator ample opportunity for review and to consider the arguments of the parties. The brief should contain a summary of the position of the submitting party with respect to the issues in the case. The submission of pleadings, exhibits, motions, decisions of the court and deposition testimony alone without a summary is not an effective way to educate the mediator as to your position which is to your advantage. The brief should incorporate exhibits which are critical to the understanding of the case. The exhibits submitted should be carefully referenced in the summary in the brief itself and relevant portions should be highlighted.

All too often, the briefs submitted prior to mediation are pure advocacy without a balanced reflection upon the potential evidence to be presented if the case were to go to trial. In an attempt to persuade the mediator as to the efficacy of the party’s position, the brief becomes unduly lengthy and redundant. It is to counsel’s advantage to submit a clear and concise brief which represents a balanced presentation of the facts that not only stresses the strengths of your case, but also acknowledges its defects and addresses them. While it may seem counter-intuitive, this is to your benefit. A balanced brief will enhance your credibility with the mediator. This is similar to the jury selection process wherein a knowledgeable trial attorney will make the jury aware of the problems in their case in advance so to avoid credibility issues as the negative evidence is presented. By the same token, this gives the mediator the opportunity to consider both the strengths and weaknesses of your case and to understand how you are going to address the weaknesses. By doing this, you give the mediator time to consider these issues in advance of the mediation. Additionally, you gain credibility with the mediator by presenting a fair view of the case and one that is not slanted solely to your side.

1. Always submit a brief.
2. Use the brief to educate the mediator and your adversary as to your position in advance of

   the mediation.

3. Use the brief to maximize your use of time and to avoid lengthy arguments during the joint

   session.

4. Always exchange the brief with your adversary.
5. Exclude from the brief any materials which you believe should be withheld for tactical

   advantage.

6. Submit an accurate, brief and clear summary of your position.
7. Address the procedural status of the case, the basic facts, and your arguments in support of

   your position inclusive of an analysis of applicable law.

8. Avoid redundancy in your argument – less is more.
9. Attach those exhibits which are critical to your case.
10. Submit your brief well in advance.

The most precious commodity at any mediation is time. The goal of an attorney in advance of the mediation is to engage in adequate preparation so that the time allotted is used most effectively. In order to ensure this, the preparation process becomes critical. One of the best opportunities to help maximize the use of time and the possibility of settlement is the preparation and submission of an effective brief. The purpose of the brief is twofold. The first is to educate all of the parties in advance of the mediation as to your position. This will save precious time during the joint sessionwhich otherwise will become mired in a lengthy oral argument with respect to each party’s position. This does not mean that during the joint session that the parties will not engage in a substantial discussion about the merits of the case. The give-and-take during the opening session is an excellent opportunity for the parties to state their positions. However, a brief submitted will make this part of the process far more meaningful as all attending will have a good understanding of your position in advance.

The foregoing leads to the discussion as to whether the brief should be exchanged with the opposing side. I have found that inevitably all of the information contained in “confidential”submissions is ultimately discussed during the opening session. If there is something that, for tactical reasons, the party wishes to hold back, that should be excluded from the brief, and discussed privately with the mediator or, it can be added onto the brief in a separate confidential document that is sent only to the mediator and not the other side. Ultimately, based upon my experiences, it is to your advantage to exchange the brief.

The content of the brief is critically important. It should contain a clear summary of the procedural status, the facts of the case, and an argument with respect to the party’s position, inclusive of an analysis of the applicable law. To submit exhibits without a summary does not take advantage of this opportunity to proactively advance the process. A submission which consists solely of exhibits or with little explanation in the summary as to their import gives no insight as to your position.

The summary should be prepared in a fashion which is accurate, brief, and clear. Briefs frequently resemble motion papers I reviewed as a judge. Many are completely redundant and premised upon the assumption that the more an argument is repeated, the more likely it will be accepted. This should be avoided. The brief should be designed to educate both the opposition and the mediator as to the basic principles of your position. Parties should give careful consideration as to what exhibits should be annexed to the brief. Kitchen sink attachments are not useful and should be avoided. Instead, attach those exhibits that are clearly necessary to advance your position and that enable the mediator and your adversary to have a full understanding of same.

Finally, the further in advance the brief is submitted the better for all concerned, as this allows sufficient time for review and consideration.