fbpx

YOUR MEDIATION BRIEF SUBMISSION: NOT FOR INFORMATION PURPOSES ONLY

Your Mediation Brief Submission: Not for Information Purposes Only

By Steven N. Joseph

(Please note that the views expressed in this article are written as my own views to provide guidance for defense counsel, and do not in any way, reflect those views of Western World Insurance Company, Validus Specialty, or AIG.)

For those who handle mediations on a regular basis, let me describe a situation that you will say “Hey, that has happened to me, too!”. 

The mediator is selected based on someone’s experience. The mediator comes highly recommended, and you are told that this person is the perfect mediator for this particular case. You get to the mediation, and the mediator is terrible! “Who picked this guy?”, you ask. The parties end up in an impasse, further apart than when they started, and you head back on your long journey home filled with frustration and a sense that valuable time was wasted. You are seething in anger at the person who recommended the mediator.

Now, we can attribute this to the mediator having a bad day, or the person you trusted with selecting the mediator as not being very good in working the selection process. But, I want to bring up something else that may have contributed to the bad mediation experience: your mediation brief submission.

Too often, when I read mediation brief submissions, I feel somewhat disappointed. The brief provides a concise statement of facts, a brief analysis of the law, and a conclusion that states the hope that the mediator can somehow work some magic and bring the parties to a resolution.

There are many cases in which that kind of submission may be totally adequate, and it may not make much of a difference if the mediation brief is shared with the other side or kept confidential. But, there are other cases when the stakes at the highest where that kind of approach may lead you, if not disaster, a very unhappy result.

So, let’s start with confidentiality. Should the submissions be kept confidential? This was the question posed to me by defense counsel on a recent case that involved claims that involved a very large exposure and a huge difference in the respective version of facts that each side held on to. 

My answer was an easy one. It should be kept confidential. My expectation in this particular case is that the parties will be very far apart, and the mediator will have to work very hard to bring them closer together. 

Because of this, one of my goals in drafting a mediation brief is to provide the mediator with as much ammunition (or information) as possible that the mediator can present in a private caucus session with the other side, coming from the mediator’s neutral position.

If I share my mediation brief with the other side, I have lost much of this opportunity to use the mediator for this particular purpose. The other side will hear or read these points in the brief, and they will read it as coming from an adverse party rather from someone who is taking a neutral view of the case. 

It is quite simple. It is more effective for the neutral to explain my opponent’s weaknesses than for me to do the same thing. The chances that the other side will consider these points are greater. The chances that we get concessions from these points coming from a neutral party are greater.

However, there are those cases that there is a greater benefit for the mediation brief submissions to be shared with all of the parties. The typical case that I would put in the “shared” category would be construction defect cases when the majority of the time at the mediation is discussing the damages and the reasonable settlement value based on the parties’ analysis of damages. 

In these type of cases, defense counsel will provide their own analysis of the damages prior to the mediation, including what they believe to be the opposing analysis of potential damages. From my own decision maker’s perspective, I would like to get the opposing side’s analysis prior to the mediation, review the numbers and our response to this analysis, and I can then be better prepared for the mediation. It serves none of the involved parties’ purpose if one side is presented with a damage analysis that they receive for the first time at the mediation.

A third type of submission maybe be a combination of the two. You provide one submission to educate your opposing side. A second “confidential” mediation submission is given to the mediator in which you provide to the mediator information that you believe may be useful to get the case resolved, hopefully, in the range you have targeted the case for settlement.

Now, let’s get back to “ammunition” for the mediator.  What will be helpful for the mediator to know when he or she goes in to the private caucus session with the opposing side? If this case was tried, what story lines would be effectively utilized if the case went to trial? If the case has been fully litigated before the mediation, what evidence has the opposing side failed to present that may make their position somewhat deficient? 

Another important thing to consider is your opposing counsel. Did the other party retain the “A” team? Let’s say I asked you “what kind of mediation brief will they be submitting?”. Let’s say your response is that they will be submitting an excellent piece of work, and they will be hitting us from all sides. Given that this is your response, are you prepared to write an equally excellent piece of work?

If you think of as jury trial as an attempt to win a popularity contest, the mediation should not be viewed as any different. The mediator, while acting as a neutral, will be evaluating both sides, and based on what is presented to the mediator, the mediator then decides which side needs to move, or will likely be more amenable to suggestions to move. My goal in a mediation is to create a dynamic in which that happens more in the other room than in ours. 

This brings me to my last point. The mediator will read your mediation brief submission not only for what it says, but how you say it, and what it does not say. The mediator will be reading between the lines. Are you prepared to be flexible? Will you be saying that substantial movement will need to come from the other room? Will you be asking for the mediator’s guidance and assistance?

Stop. Be careful here. The big mistake that many people make is that they give the mediator too much power over themselves. “We will go to a mediation to see what a third party thinks of the case.” Ultimately, the mediation brief submission is to give the mediator power, but it is your power. How will you prepare the mediation brief submission to maximize your own power that the mediator can use effectively to get you the desired result you want from the mediation? Only when you have the answer to that question, you can click on “submit.” 

Facebook
Twitter
LinkedIn
Pinterest

Explore Steven's Blogs:

Crankiness

Crankiness

Empowerment

Empowerment

Kid Stuff

Kid Stuff

Lifestyle

Lifestyle

News

News

Lawyer's Blog

Lawyer's Blog

You May Also Like:

Steven Joseph, author, head shot with a hat

Let's Connect

Allow me to share updates on my writing and appearances with you by joining my mailing list.