*Case Law Ltd. Extern and University of Oregon Law Student, Class of 2023
Put simply, a mediation brief is a tool to help the mediator understand the dispute and effectively assist the parties in settlement. Although commonly disregarded, a mediation brief—if non-confidential —can also be a tool to convince opposing counsel to value your case higher or to incentivize a higher settlement.
There is one primary reason for these dual audiences: mediation enables the parties and their respective counsel to assess the demeanor and merits of each side, as would be seen by a jury should the matter go to trial. As such, a mediation brief should strike a balance between persuasiveness and appropriately evaluating the legitimacy of claims.
Both audiences must be considered, and the following blog will explore how to best achieve this.
CONFIDENTIALITY
As mentioned, there is an important decision to be made regarding whether or not a mediation brief will be submitted confidentiality to the mediator—meaning the mediator will not share the brief with opposing counsel. Undoubtedly, there are reasons to value confidentiality. For example, a confidential brief can clearly assert both your strengths and weaknesses, thereby providing the mediator with greater insight into the parties’ positions. A non-confidential brief, however, can provide a unique opportunity to convince opposing counsel to value the case higher or consider factors that could incentivize them to a higher settlement. Doing so presents important expectations before the mediation, which can lead to more favorable settlements.
Ultimately, confidentiality is one of the most important strategic decisions in mediation and one that will be decided after extensive discussion between a client and their attorney.
THE MEDIATOR
Given that the mediator will always read your brief, it is important that they have an immediate bird’s eye view of the dispute. To this end, the brief should begin by briefly listing the parties, summarizing the legal claims, and explaining what is at stake for the client. Beyond this, it is
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[1] While the mediation itself is confidential in that communications therein cannot come into evidence pursuant to Federal Rules of Evidence 408, the mediation brief can be either “confidential” (provided only to the mediator) or “non-confidential” (provided to both the mediator and the opposing side).
crucial that the mediator has all pertinent facts, a precise procedural status and the parties’ negotiating history, the key legal issues, all pragmatic considerations, and any relevant demands. Each element is explained in more detail below:
Pertinent Facts: Tasked with helping the parties explore settlement, a mediator must be aware of all pertinent facts. One common method of doing this is telling your client’s story from their perspective—thereby illustrating those considerations that would gain a jury’s sympathies. It is important to also address legitimate facts in dispute. Through this, the mediator can better understand why your client seeks redress and develop strategies to help the parties effectively and efficiently resolve the dispute.
Procedural Status and Negotiating History: Beyond pertinent facts, a mediator must know how this case arrived at mediation. This procedural status should include, if applicable, the disposition of the case in the lower court(s) and any damages awarded or relevant appeals. This section should also explain any previous offers, demands, or attempts to negotiate a settlement—including all relevant details. If no settlement discussions have occurred, it is important for the mediator to understand why. By knowing the history of efforts to resolve the case, a mediator can avoid unnecessary time and costs by not reiterating what has already been discussed. Further, a case’s history can allow a mediator to better develop settlement strategies.
Key Legal Issues: The most critical portion of any mediation brief is the presentation of key legal issues. In this section, it is important to analyze and evaluate your case—clearly and succinctly—through relevant case law. A good mediation brief will focus on the strengths of the case but also anticipate and evaluate any weaknesses.
Typically, there are a handful of important judicial decisions that justify extensive discussion in your mediation brief. Highlight each of these cases and characterize them to be persuasive to your client, explaining exactly how and why they support your client’s claim. Such use of the law can help to remove artificial arguments being raised by opposing counsel.
It is also best practice to acknowledge any adverse cases that appear to go against your client. Opposing counsel will undoubtedly cite these cases and failure to address them only destroys your legitimacy. Most importantly, anticipating opposing counsel’s use of these cases allows you to use your brief to explain why the adverse case has a limited impact on the mediation at hand. Doing so can cause opposing counsel to reevaluate their valuation of the case being mediated.
Pragmatic Considerations: As mentioned, mediation provides a unique opportunity to assess the case from the perspective of a jury, should the matter go to trial. To this end, pragmatic considerations are of paramount importance. After all, a jury is made up of humans and humans make decisions based on considerations beyond a case’s facts and the relevant law.
Pragmatic considerations often consider those who are involved in the case—for example, issues about preserving relations, job security, or confidentiality. Furthermore, there are also common practical considerations such as costs, enforcing settlement terms, minimizing tax impacts, and navigating emotional toll. It is crucial for a mediator to be aware of all relevant considerations to ensure a favorable settlement that meets client expectations.
Demands: As with pragmatic considerations, a detailed demand package is crucial to ensuring favorable settlement terms. This section should paint a picture of the financial, physical, and emotional difficulties that your client suffered. Doing so provides the mediator with clear client expectations and helps to attempt to quantify the harm suffered—two things that are essential to effective settlement discussion.
For similar reasons, it is also useful to include non-monetary demands for relief. Above all, mediation is the opportunity to come to an agreement, and you can agree to anything that does not violate public policy. As a result, non-monetary demands, such as apologies or policy change, provide a unique space to consider redress that oftentimes is more important to the client than money. The inclusion of such demands can ensure a more satisfying settlement.
After all, a mediation brief should, as the American Bar Association explains, be “your roadmap to successful settlement.” The brief should clearly and succinctly explain why and what you hope to accomplish during the mediation and provide the mediator with the information to establish an effective strategy to resolve the case at hand.