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A recent example involved a mediator who adopted and pushed for settlement with a position completely unsupported by evidence, causing significant frustration for the attorney and client. In this instance, opposing counsel had conducted no discovery, and simply filed and served a complaint and nothing else. Then six months later, they found themselves in an expensive mediation, making a high six-figure demand, entirely lacking evidentiary support. Needless to say, the attorney was very frustrated by all of this since the mediator was posturing the case for a substantial settlement without any evidentiary basis to support either the liability or damages being claimed. The case did not settle, and the attorney and their client, who had submitted a comprehensive brief with supporting authority and evidence, were extremely disappointed by the process and the mediator’s actions. Unfortunately, this can happen with even the most experienced mediators.
BEST PRACTICES FOR EFFECTIVE MEDIATION BRIEFS
Briefs and evidence are critical to the process and should be clear, concise documents used to convey a position to the mediator and the other side, supported by law and evidence. Not submitting a brief, or a brief lacking such substance, has little value to the mediator and can actually impede the settlement process.
Briefs should always:
- Be clear, concise, non-argumentative
- Be supported by discovery and other evidence
- Be shared with the other side
- Not “hide the ball”
- Acknowledge the strengths/weaknesses of the other side
- State a proposed settlement position in unambiguous terms
In cases where confidential information must be withheld from the opposing side, a “mediator’s eyes only” letter or brief may be appropriate and submitted to the mediator. However, such information often proves necessary for settlement and should be disclosed with permission when beneficial to the process.
A CRITICAL TOOL FOR RESOLUTION
If a brief follows the above guidelines, the case has a much greater chance of resolution in the hands of an experienced, thoughtful mediator. The mediation brief is an important, if not essential, part of the process and should not be overlooked as an important tool for all parties involved. An unsupported position by a party, if adopted by a mediator as a point of reference for a settlement, can and will kill the process.
Practitioners should do the necessary preparation if they want to increase the likelihood of a successful mediation. This includes conducting discovery, crafting a mediation brief that utilizes evidence from that discovery and expert sources, and providing the mediator and opposing parties and counsel with something of probative value to move the case to resolution. The mediation brief is the best tool for that purpose.
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