Effective Mediation Briefs
By Ed Sikorski
Aside from the cost of preparation and a possible perception that a mediation brief is not going to effect the mediation very much because the mediator is not the decision maker, mediation briefs can be a very effective tool in the dispute resolution process if the focus is aimed at two areas.
First, focus on persuading the other side. It is another opportunity to affect the other side’s thinking. Present facts and arguments that make the opposition reluctant to proceed to trial and why resolution on your terms is in their interest.
Second, focus on information that directly addresses the considerations most applicable to settlement, as opposed what a judge might need to understand prior to trial. What obstacles have prevented prior settlement? If there is a factual dispute, identify that. If there is a legal dispute, identify that. If the participants simply have different views about the range of possible outcomes at trial or appeal, the mediator can help bridge that divide. If the problem is really an ability to pay, both sides should address that problem.
Try writing and exchanging mediation brief with these purposes in mind. Think about how the other side views the case and try to write something that addresses those concerns.