Mediation Briefs 101
Here is the outline/checklist for the all-purpose, exchangeable Mediation Brief. With luck, it can be assembled in less than 4 hours.
- Introduction: 200+/- words describing the type of case and a short version of the facts and damages.
- Coming Events: Procedural status of case: trial date, pending motions (both discovery and dispositive) and scheduled discovery.
- Facts/Timeline: Tell the lawsuit’s story anchored to documents and/or an event timeline.
- Exhibits: Attach case critical documents including contracts, insurance policies, timelines, damage summaries and other important items. Highlight key passages for easy location and reading.
- Law: Unless the case turns on fine legal points, go light on the legal analysis. You, your opponent and the mediator probably know the law. Hit the high spots and any controlling regulations, statutes or cases.
- Damage Summary: Outline damages in table form, preferably in less than a page.
- Settlement Status: How did we get to this mediation? Court ordered or encouraged? Counsel/Parties agreement? Critical upcoming event? Set out settlement negotiations to date. If you are the plaintiff and there has been no demand, include one.
Mediation Briefs 101A
Once the mediation brief is written, the following steps upgrade its persuasive quality.
- Edit the brief: Editing makes the brief more readable and conveys your message in clear and concise language.
- Proofread/Spell-check: Misspelling and grammar lapses detract from the brief’s quality and presentation.
- File the brief on time: The mediator will have time to read and outline the brief and be ready to hit the ground running.
- Exchange Briefs: When the other side has your brief, they know your positions on the facts and issues. Differences of fact, law and damages can be addressed early and the mediation gets off to a productive start.
Do the Math
Before every mediation or arbitration check the math i.e. your damage calculations. The math includes plaintiff/defendant versions of:
- Contract claims over time and mitigation.
- Comparative negligence and economic/non-economic loss allocations.
- Interest and attorney fees.
- Present value projections. (Request a compact Present Value Calculator, Excel format, by Reply Email.)
Accurate damage figures make for a polished brief, improved client-counsel communication and more effective advocacy.
Exchange Briefs with the Other Side
It saves time, making the mediation more efficient by focusing the parties and the mediator on the issues. The mediator does not have to guess at what’s confidential and what’s not. If you have confidential information to share with the mediator, let the process unfold a bit, so trust and confidence can develop. Then your confidential information will not be compromised and can be used to your greatest benefit.
Send Evaluation Material Early
No case is settled until the paying party, usually the defendant, receives, reviews and evaluates the primary data supporting the plaintiff’s claim. In business disputes, it’s the schedule of orders unfilled and the cost of cover. In construction cases, it’s the list of change order requests and supporting data. In personal injury, it’s the medical bills and loss of earnings documentation. Even if the material has been produced in discovery, update it and summarize it in a clean, clear and concise form.
In order to evaluate plaintiff’s claim and secure authority, especially in large cases, there is often a formal review process, which includes staff evaluations, committee review and final authority from management. Delivering evaluation material with plenty of lead time facilitates defendant’s evaluation process and results in a more productive mediation.
Be Prepared: Details count
Any mediation or arbitration goes better when we don’t have to worry about the details. When you or your staff completes the following checklist, your ADR process is off to a good start.
1. Confirm the day, date and time with: the ADR provider, your client and the other side.
2. Put your brief and exhibits where you can’t miss them when you leave the office.
3. Be early. This allows time to catch your breath, meet the client or witnesses and generally get the “lay of the land.”
