The goal of mediation typically is to get the best possible outcome without gambling on an uncertain adjudication in a courtroom. A crucial step in the process is crafting an effective mediation brief.
Most lawyers include the standard information:
- Relevant facts and law;
- Key documents and testimony;
- Relief sought; and
- Prior settlement discussions.
However, this relatively dry list doesn't address a key question: What will move the other side toward agreement? Here are several tips to increase the possibility of that happening.
Many lawyers submit "confidential" briefs to the mediator, hoping to avoid premature disclosure of their position. But if the brief is confidential, how can the information impress the folks sitting across the table?
A productive strategy is to deliver the message ahead of time, thereby promoting a worthwhile - and mutual - premediation evaluation of the case.
This approach conveys not only your (hopefully) winning arguments, but also what it will take to persuade your client to settle. Sharing a thoughtful brief in advance also allows everyone to discover unanticipated areas of agreement. Then, the parties can drill down to the real areas of disagreement at the heart of their dispute.
But beware of exchanging a brief that could be considered insulting or arrogant, and avoid any personal attack on opposing counsel or the other side - save that material for a private caucus with the mediator.
Attorneys face difficulties in virtually every case. The key is to identify the problems and deal intelligently with them. Convey to the mediator the problems confronted by both sides
. Do it confidentially - and "copy" your own client. Having your candid assessment of proof problems or troublesome legal issues will help the client stay open to compromise.
No one can reach a just settlement if they are kept in the dark.
The mediator expects to see an explanation of what your client wants and needs in order to settle. However, it's equally important to address what the opposition
needs as well. Supplying that information in advance allows an adversary to enter mediation with a greater appreciation of your view of the case - and often they will arrive with more money, options, and ideas that can contribute to a fair settlement.
What if your adversary is all bluster and arrogance, deaf to reasonable dialogue? If that is the case, stop and think about what he or she needs, and come up with suggestions to promote a work-around - and communicate them privately to the mediator.
From the mediator's perspective, the most useful briefs provide counsel's assessment of hidden issues.
If the lawyers examine and explain what they think is driving the dispute, the mediator can better understand the nature and cause of the conflict, and work efficiently to devise a solution. Sometimes a simple communication failure is the problem. In some cases financial difficulties created the conflict. Other times, the litigants want to have their day in court, no matter what. And all too often the lawyers themselves add fuel to the fire when clients demand "aggressive representation."
An honest assessment of these dynamics in a mediation brief is invaluable to the mediator.
In the end, everyone must work together to determine what is holding up a settlement. This takes meaningful reflection, and mediation is the process designed to foster that type of analysis. Mediation allows the parties and counsel to carefully examine the risks they face and the results they can live with. Explaining the obstacles in a premediation brief (or in private premediation discussions) will help the mediator address everyone's needs.
Though it is essential to explain how and why your client's position will ultimately prevail in court, consider the real purpose of the mediation: to come to an agreement. That's why it's important to identify and present information in a thoughtful tone that will constructively engage your opponent.
Crafting a brief that moves the opposition toward agreement, and away from hostility, is a vital step in that process.
Rande S. Sotomayor is a mediator in La Cañada.