In order to draft the mediation brief, you will necessarily:
1. Review the facts and the law
2. Gather the pertinent documents, and
3. Calculate damages.
I know the above sounds perfunctory, but I am chagrined to relate that as a mediator, I have conducted too many mediations where one side or the other didn’t have command of the facts or hadn’t researched the law adequately or had merely estimated damages. (Naturally this disappoints me as a lawyer. It makes us look bad.) As one of my commenters noted recently, lawyers wouldn’t think to go to trial unprepared. When 98% of your cases settle, it makes sense to come to mediation prepared.
In a case involving compensatory damages, review the actual bills themselves for expenses incurred as a result of the breach of contract, tort, etc., prior to the mediation. Plaintiffs’ attorneys would be wise to provide copies of all bills prior to the mediation, so that the defense has time to analyze them and request enough authority to settle the case. Defense attorneys would be wise to have done their own review so that the amount (or range) of compensatory damages can be agreed upon.
The brief should set forth, at a minimum, the parties and their counsel, the factual background, the applicable law, prior settlement negotiations (if any), perceived impediments to settlement, your client’s settlement posture, and relevant discovery deadlines, hearing dates and trial date. Attach pertinent documents to assist the mediator in understanding the case.
Consider that opposing counsel may send a copy of your mediation brief to his client. This creates an opportunity for you to speak directly to the other party. Take advantage of it! You wouldn’t talk to a jury in legalese. Tamp down the legalese and opt for a more conversational tone. Attach documents that you want the other party to actually see.
There are several schools of thought as to whether or not mediation briefs should be confidential. Check with your mediator. I prefer that briefs not be confidential, but if a party is convinced that it needs to convey information to me prior to the mediation that it does not wish the other side to see, I recommend a non-confidential brief with a short supplemental confidential addendum.
1. Review the facts and the law
2. Gather the pertinent documents, and
3. Calculate damages.
I know the above sounds perfunctory, but I am chagrined to relate that as a mediator, I have conducted too many mediations where one side or the other didn’t have command of the facts or hadn’t researched the law adequately or had merely estimated damages. (Naturally this disappoints me as a lawyer. It makes us look bad.) As one of my commenters noted recently, lawyers wouldn’t think to go to trial unprepared. When 98% of your cases settle, it makes sense to come to mediation prepared.
In a case involving compensatory damages, review the actual bills themselves for expenses incurred as a result of the breach of contract, tort, etc., prior to the mediation. Plaintiffs’ attorneys would be wise to provide copies of all bills prior to the mediation, so that the defense has time to analyze them and request enough authority to settle the case. Defense attorneys would be wise to have done their own review so that the amount (or range) of compensatory damages can be agreed upon.
The brief should set forth, at a minimum, the parties and their counsel, the factual background, the applicable law, prior settlement negotiations (if any), perceived impediments to settlement, your client’s settlement posture, and relevant discovery deadlines, hearing dates and trial date. Attach pertinent documents to assist the mediator in understanding the case.
Consider that opposing counsel may send a copy of your mediation brief to his client. This creates an opportunity for you to speak directly to the other party. Take advantage of it! You wouldn’t talk to a jury in legalese. Tamp down the legalese and opt for a more conversational tone. Attach documents that you want the other party to actually see.
There are several schools of thought as to whether or not mediation briefs should be confidential. Check with your mediator. I prefer that briefs not be confidential, but if a party is convinced that it needs to convey information to me prior to the mediation that it does not wish the other side to see, I recommend a non-confidential brief with a short supplemental confidential addendum.
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