By Steven G. Mehta
It is never ceases to fascinate me that there are so many styles of providing mediation briefs. Recently, I received a brief that screamed “I don’t want to do this case.” As a result, I thought I might give some of the biggest mistakes in mediation briefs.
Don’t Know Your Target Audience
First, before you write your brief, you must consider who is your target audience? If you write a brief without such focus, it will not be persuasive or useful to anyone. Typically, you possible audiences are the mediator, the opposing lawyer, the opposing client, or your own client – or some variation and combination of those. Given the different targets, you might consider different briefs – such as a confidential brief for the mediator and a public one. One counsel wrote briefs that were informational for the mediator, but intended to show his client that he was an advocate for the client’s position.
Wait Until the Last Minute to Let the Other Side See Your Brief
If you are writing a brief for the opposing counsel or client, make sure to have it to them well in advance for them to consider. If you send it to them a few days before the mediation, they won’t have time to digest the information. Consequently, the decision that you want them to make can never be made in such short time.
Provide a Four Page Introduction
Make an introduction just that; not a full factual story. The introduction should quickly summarize in no more than two paragraphs the theme of the case, the key facts, and the emotional appeal. It should not be a full statement of the case. It should tease the audience into wanting to read more and not just stop at the introduction.
Provide a 32 Page Brief
Be Concise, Clear and Short. One time I received a brief that was 76 pages. After a while the mediator will not be able to digest all the facts and information that you are providing in the treatise on Doe v. Roe. The more concise you can make the brief, whilst communicating the message of the case, the better. Consider the brief like a motion in court, there is a page limit.
Don’t provide any Legal Authority
The mediation brief needs to address the factual and legal issues in the case. Some cases require less legal analysis. For example, a PI auto case might not need Prosser’s treatise. But on the other hand, an employment case might need more specific authorities. When citing to law, it is helpful to cite specific cases that address the specific legal points and not just generic legal authority. Also, when citing to cases, it is very helpful to quote the actual case and not just your own conclusion.
Make Claims in Your Brief that Can’t Be supported
In the movie Top Gun, Tom Cruise (Maverick) was being chewed out by his superior officer and the Captain shouted “Maverick, You are writing checks your body can’t cash.” Well, don’t write checks in your brief that your case can’t cash. Credibility is critical in mediation. You need the other side and the mediator to believe you. If you make claims that aren’t true, you will have lost all credibility. Generally, overstating a case is a sign of a weak case.
Don’t Provide Any Backup for Your Assertions
One simple and persuasive thing that can be done in a mediation brief is to support your claims with evidence. If you claim that a witness stated something in deposition, either attach the relevant portion or quote it in the brief.
The mediator doesn’t know what fact is or what fiction is. Having the backup for everything you say in your brief can help the mediator evaluate your strengths and weaknesses. In one case, every factual statement was supported by a document. You would be surprised at how credible and impressive that is to a mediator. It is hard for the other side to argue about the facts. They can argue the meaning, but they can’t argue the facts.
Depending on the case, consider cutting and pasting the evidence directly into the brief. One attorney submitted critical pieces of evidence directly into the brief. As a result, when reading the brief, the reader did not have to flip to the back to see the evidence. It was right there in front for everyone to see. The message it sent was: “I know I have the goods. Do You?”
Copy Your Pleadings Directly Verbatim
Perhaps this is my pet peeve. But it drives me nuts when I start reading the brief and I see allegations that are just out of the complaint. You might as well say, “I didn’t have time, nor do I care much about this case, so here it is.”
Make No mention of what has Happened in Prior settlement Discussions
Many times, there have been settlement discussions prior to mediation. It is helpful for a mediator to know those discussions. Sometimes, when both sides discuss the settlement discussions in their briefs, it is obvious that there is already a disagreement. In one case, one side stated that they would settle the case at the end of the day for $100,000. The other side interpreted the discussion as a starting spot. Having that information beforehand can help the mediator prepare for the mediation.
Even if the discussions were informal, it is very important to raise those to the mediator.
