Developing Your Powerful Mediation Brief
By Justin O’Connell
Attorneys train and prepare for hearings and trials but, all too often, the same level of work, attention, and skill are not applied to prepare for mediations. Some of the preparation for mediation is working with the client to develop a plan and settlement objectives. Some of the preparation is for what will occur during mediation. But a significant amount of preparation should center on the mediation brief (sometimes called a mediation statement). The brief is where an attorney explains the client’s position and why the client should obtain its goals. The brief can make a lasting, impactful impression on the attorney’s client as well as on the opposing counsel and the opposing party. Yet, many attorneys overlook the importance of developing a powerful mediation brief.
The composition of mediation briefs sometimes appears as routine, last minute, canned outlines filled with acrimonious tone but sparse on meaningful discussion. Such briefs are often accompanied by exhibits galore that appear to be a replacement for the attorney work product, appearing as the equivalent of stating, “See attached – figure it out.” However, drafting mediation briefs with due skill and thought is critical. The mediation brief usually provides the only opportunity to indirectly address the opposing party. The mediation brief can persuade a shift in settlement position, whereas a trial brief is designed to persuade an absolute outcome.
Attorneys spend countless hours sharpening their skills to win a request for order, write a trial brief or make a closing argument. But most cases settle before trial, so having the skill to obtain a favorable settlement should be a goal of any attorney. The mediation brief should reflect the culmination of that skill and not be a half-hearted attempt to please the mediator by just submitting paperwork, and please the client by denigrating the other opposing party. Remember that it is likely your client’s goal to make the mediation session the last day of the case, so your mediation brief should reflect the importance of achieving that goal. Treat mediation with the importance it deserves and think about some of the following tips when preparing your brief.
A mediation brief might not be so brief. Attorneys sometimes feel compelled to write a volume of work to cover the numerous issues and facts. Mediation briefs, like trial briefs, come in many different lengths. Some are short and some are long. Some have exhibits and some do not. Some are summary in nature, while some go into exhaustive detail including case analysis and brief footnotes. Before writing your brief, consider the objectives, your audience, and how effective you think your work product will be to meet those objectives and speak to your audience.
It is no surprise that mediators prefer shorter, concise mediation briefs without numerous exhibits. While that preference might reflect a desire not to be burdened with too much, it might also reflect a mediator’s approach to the process. The more evaluative the mediator’s approach, the more they might want details and evidentiary support, while the more facilitative mediator might be comfortable developing facts during the mediation session. When considering the length of your brief, consider what approach style – evaluative vs. facilitative – will likely work better to reach a settlement, and what your mediator’s approach tends to be. Lengthier briefing on topics that need an evaluative approach might be more appropriate (e.g., where the law is on your side), and shorter briefing of topics might be more appropriate for a facilitative approach (e.g., where the law is not clear and there is room to negotiate).
A 12-page brief can be just as effective and informative as 25-page brief. The number of pages is not what is most important, but rather the attorney’s effectiveness in communicating within those pages. You should strive to develop mediation briefing as a skill, and not something you have to do just because the mediator wants something in writing ahead of time. Your ability to turn a brief into a great mediated settlement is what your client wants. So, focus on substance and not on page numbers, and bear in mind more is not always better. Simply stated, quality is more important than quantity.
Timing can be everything. Especially where significant assets or complex issues are involved, it might be beneficial to exchange mediation briefs well in advance of the mediation. While a mediator might be able to get a brief the day before the mediation and be ready to go, your opposing attorney and opposing party might need more time to make mediation successful. Even if it is far superior, a brief served the night before the mediation (or worse yet, served at mediation), does not give the other side the opportunity to prepare and consider positions.
Your brief might inform your opposing counsel of issues that need to be researched or discussed with their client. Your opposing counsel might need to consult with experts or obtain additional information to give the mediation the best chance of success. Extra lead time can be the difference between a settlement and a wasted day in mediation. Remember that ambush is likely not a fruitful tactic in mediation since the process is voluntary and the opposing party can walk from negotiations at any time. When considering how to draft your brief, also consider how much lead time you want the other side to have to read your brief and come to mediation ready to discuss settlement.
An exception to this approach is the confidential mediation brief. In some cases, the mediator might agree to (or request) a confidential brief from each side that is not shared between the sides, in additional to brief that are exchanged. In these instances, you are not interested in getting the other side prepared for your position, your facts, and your proposals. Instead, you are providing the mediator private insight into your view of the case – perhaps acknowledging weaknesses or promoting strengths. Timing should still be a consideration since you want the mediator to have had time to review and consider your confidential brief.
III. Understand Your Audience
Your mediation brief usually has four audience members, each of whom has a different perspective and different role: 1) your mediator, 2) your client, 3) the opposing counsel, and 4) the opposing party. Understanding your audience should be the starting point of your approach to mediation and should frame the tone of your brief. Your audience members are not aligned in their thinking, attitude, knowledge, and objectives. It is your job to persuade them to either agree with your position or at least acknowledge your position has merit. This is not an easy task but is not an insurmountable one.
As to the mediator, who is this person? Your approach to briefing should consider that the mediator’s personality and methodology are factors in reaching a settlement. Is your mediator cerebral and authoritarian during mediation, gentle and empathetic, or a combination thereof? Do you know the mediator or know the mediator’s reputation? Is the mediator a retired judge that brings experience and the appearance of authority to your mediation? Is the mediator an attorney with personal knowledge of the scope and difficulty in proving a case? A routine, canned mediation brief that does not consider who the mediator is will have less impact on the mediator.
Your mediation brief should not project and tell your mediator what you would want to know if you were the mediator and instead should tell the mediator what the mediator wants to know. This should be true not only to your persuasive content, but also to the general structure of your brief. For example, if you know your mediator is likely going to cut to the chase and jump into global resolution, a lengthy discussion of small issues will be ineffective and time consuming to prepare. In such a case, be prepared to discuss the small issues, or summarily note they exist in your brief, but accept that your mediator is not going to want to spend time wading through them in your brief. For example, your client might want you to discuss the client’s 50 reimbursement claims totaling $20k, but if there are substantial assets and huge support issues, then perhaps the reimbursement claims are not what the mediator will want detail about in the brief.
As to your client, who is this person? By the time you attend mediation you have likely developed an understanding of your client’s goals, your client’s personality, and the emotional content your client will bring to mediation. Most importantly, you will need to keep in mind that what your client thinks is “fair” is likely not congruent with what other audience members think. You should prepare your client for the mediation process, including the notion of compromise. That preparation should also include explaining the role of the mediation brief, so your client is not concerned that the brief does not detail every fact nor frames the opposing party as evil incarnate. From the client’s initial perspective, they want to see a hammer pounding out a settlement, but you need to explain that a hammer is not always the appropriate tool. Your client should understand that mediation brief – and not a hammer – is the tool for the task.
As to the opposing counsel, who is this person? Have you experienced litigation or mediation with them before? How has this case been litigated so far? Does opposing counsel have personal objectives such as getting paid? Do you know that this attorney never takes a case to trial? In drafting your brief, consider what is going to motivate the one person at mediation who is being paid to oppose you to instead compromise with you.
In many cases, your opposing party might be the primary audience you focus on. The greatest obstacle to settlement is not finding the right evidence or the right code section, but rather how to get the opposing party on board to a settlement. Often, your own client will be a great resource in exploring what will move or motivate the opposing party. Your client likely knows this person well and can tell you when to use a carrot and when to use a stick to move the case to settlement. Do not overlook your client as a valuable resource in this respect, as you can shape the tone of your brief and settlement offers to be more receptive to the opposing party since you have access to an insider’s view of what makes that person tick. This is another reason to have your client review your mediation brief ahead of time to see if your client agrees that it might be effective as to the opposing party.
Do not overidentify with your client and let your perspective be clouded by a belief that your client is the sole casualty of the circumstances. Remember that mediation centers on negotiation and not collaboration but set a tone in your brief that will be conducive to settlement. Do not insult your opposing counsel or your opposing party. Remember that you are trying to reach agreement and not destroy your opposition. When you want to reach agreement with someone, it is not helpful to throw around words like fraud, dishonesty, swindler, and bad faith. Let the facts and the law speak for themselves. If the opposing party committed a wrong, make it obvious through your recitation of facts and application of law and not through use of adjectives. If the opposing party sees they are called a thief, they might withdraw from negotiations. However, if they see a chart with the 22 instances of funds being siphoned off by them from the community estate, then they might come to the table to talk settlement.
IV. Provide a Concise Summary of Issues and Facts
Providing a concise summary of the key issues and facts will serve as a roadmap for your mediator (and for yourself). This is the portion of your brief where your target audience is primarily the mediator. From the mediator’s perspective, briefs that start with a lengthy summary (or none) can be cumbersome and lack impact. A mediator confronted with a catalog of factual minutia faces a challenge; Is each piece of information equally important? Is the date of birth of each child relevant? Is the fact that it cost $5,445.98 to repair a car going to impact spousal support? Does the fact that an email was sent on June 8, 2020 have something to do with anything? Does it matter that your client loves cats? Imagine the mediator making notes while reading your summary with the expectation that these are important points to remember later.
Use a sentence – or a few – to highlight each issue and what important facts you want the mediator to focus on. This will provide early insight into your client’s position, so the mediator is not looking to find it buried elsewhere. Your summary should help the mediator develop strategies for resolution. It should be impactful, guide the mediator’s thinking, and quickly impart information so that the mediator can anticipate where the rest of the brief will head. Your summary should tell the mediator early on what is important and should prime the mediator through tacit persuasion that your points are correct.
V. Provide a Concise Summary of the Procedural Posture of the Case
Provide a summary of what has occurred so far in the case but keep it a summary. Perhaps this summary can be only a line or two, depending on the focus of the mediation. Often attorneys restate entire orders, or detail discovery, when what should be provided is a general answer to the unstated question, “What has occurred so far?” To the extent relevant, summarily inform the mediator of what discovery was conducted (shows what has been done to prepare), what orders are in place (shows what has already been decided), and what is yet to be accomplished (e.g., a business appraisal has not been completed). Also, inform the mediator if there are pending hearings or a trial coming up, so the mediator understands the time constraints for settlement and the psychological effect on the parties of impending court appearances.
VI. Provide a Summary of Prior Settlement Discussions
Summarily explain what offers have been made and briefly discuss why they were not accepted. Remember your purpose here is to outline proposals and potential reasons settlement could not be reached, and not to underscore how unreasonable the other side is or how ridiculous you feel their offer was. If the other side made an offer, and your client declined the offer, briefly state why the offer was not acceptable. There is plenty of time in mediation to delve into what will or will not work, so be careful not to use your brief to inadvertently frame your client as someone that will find a problem with any offer made by the other party.
VII. Use the Law
“But your honor, this is a court of equity.” – Family Law Attorney.
While mediation is an alternative to litigation, be careful not to ignore the law and fight solely for an equitable outcome for your client. Equity, like beauty, lies in the eye of the beholder. Be sure to anchor your client’s position in the law even if you spend time on what your client thinks is fair. If you receive pushback from the mediator or opposing counsel on a legal issue, you should be knowledgeable about the law on point and how it applies to your case.
Case law can be the determinative factor in the outcome of litigation, and it can also make a difference in mediation. However, except for truly complicated cases, there are usually only a few case decisions that justify anything more than a short citation in a mediation brief. If there is a helpful decision, spotlight that case and briefly discuss it. Do not devalue a decision or reduce its impact by including it in a lengthy string cite or mentioning it as one of dozens of cases that your brief cites. Focus on a helpful decision, and that focus should include applying it to your case. Do not merely cite the case, provide a lengthy excerpt from the case, and then move on to the next issue. Analyze.
If there is a particular case that seems to go against you, it is usually best to acknowledge the case to limit its importance. Citing only the positive cases and ignoring the adverse cases will probably send the wrong message to the mediator, and the wrong message to the adverse party. If you know the adverse case exists, show the mediator and your opposing counsel you have considered it and communicate expressly or impliedly that it will not dictate the outcome of mediation. Make your opposing counsel believe the impact is not as great as they might think.
VIII. Close with a Reasonable Proposal
Your brief has outlined conflict, but your conclusion should provide a solution. Consider that audience members might initially skip to the end to see what your client wants, so your proposal can influence how other perceive the rest of your brief. If you know your client’s proposal is going to be viewed as outlandish by the other party, reconsider the rationale in making it. Even in a car accident case, where one would think the plaintiff just comes in with an astronomical settlement position, that is not the case where the plaintiff needs the insurance carrier on board to cut the check to settle the case. Likewise, you need your opposing counsel and opposing party on board, so contemplate how to get them there through your client’s proposal. Also, consider that your mediator will be looking for a settlement to sell to the other side, so provide that to the mediator. Make the mediator think the mediator can accomplish the task.
IX. Exhibits / Materials
Strengthen your mediation brief through a good use of exhibits. Strength does not come in numbers, though, and overloading your brief with numerous exhibits can be useless and distracting. For example, if the opposing party made withdrawals over a 23-month period from an account, state so in your brief, bring the account statements to mediation, but do not attach 23 account statements as exhibits. You are not in trial. You do not have to have all your evidence attached to your brief to prove your case. The account statements have little impact, add to the mass to your brief, and are distracting from the real issue, which is that money was misappropriated.
Use the most powerful exhibits as part of your brief. Having needless exhibits dilutes the impact of powerful exhibits. The mediator might think you will attach just about anything and think the powerful exhibits have little meaning. Or the mediator might not even read your most powerful exhibit because it is numbered 88, and the mediator lost interest in reviewing your exhibits at around exhibit 54. Use only those exhibits that demonstrate your strengths or the other side’s weaknesses to add power to your brief. You have spent months (or even years) thinking about your case, and the mediator might have a grand total ten hours to devote to your case. The mediator needs to quickly understand an exhibit’s importance.
Charts, graphs, or similar materials made for mediation can be an excellent way to convey complex information quickly. This is especially true where there are numerous transactions, reimbursement claims, offsets, credits, and other issues through which conceptual representation is the best way to efficiently explain. Such material can be relied upon by a mediator as a quick way to understand the flow of mathematical information.
Be the attorney that creates the material the mediator relies on. This not only makes it appear to all members of your audience that you have command of the facts, but also lets you develop the narrative of what the bottom line is (plus your opposing counsel might believe you are better prepared for, and will prevail at, trial). As with all exhibits, use these materials in a meaningful and sparing manner. Do not inundate your mediator with so many charts and spreadsheets that they lose their usefulness. If you have many, then create a go-to summary chart that provides a higher-level summary of information, with the other charts solely as reference to show your work.
X. The Value of Your Words
Mark Twain once commented on being a journalist who was paid per word for his written work: “I never write metropolis for seven cents because I can get the same price for city. I never write policeman because I can get the same money for cop.” As attorneys, we practice in a field of words. Effective mediation briefs use words to truly say something. Keep these tips in mind when preparing your next mediation brief, and your words will be worth every penny.