An effective mediation brief is one of the most powerful tools counsel can use to help shape the outcome of a mediation. Unlike litigation or arbitration, where the focus is on proving your case to a judge, jury, or arbitrator, mediation is a process designed to facilitate collaboration and negotiation. The brief serves as your opportunity to frame the critical issues for the mediator and lay the groundwork for productive discussions. This is not just about summarizing the facts or asserting legal positions- and it’s not about penning volumes about why you are right or will win - it’s about strategically presenting information that will help the mediator guide both parties toward a resolution.
When done well, a mediation brief provides the mediator with essential context, clarifies the parties’ perspectives, and sets the stage for compromise. Without a thoughtful brief, mediators often enter the session without a clear sense of the dispute’s nuances, which can lead to missed opportunities for resolution. Therefore, investing time and effort into crafting a thoughtful mediation brief can directly influence the trajectory and success of the entire mediation process.
What Makes an Effective Mediation Brief?
1. Provide a Balanced Statement of the Parties’ Perspectives
An effective mediation brief should start by clearly outlining the dispute from your understanding of both parties’ perspectives. Remember that mediators are not judges; they are facilitators of resolution. Expounding upon why your client will win is not particularly helpful if that’s your sole focus in the brief. However, providing a fair and balanced account of what transpired allows the mediator to begin formulating a more holistic understanding of the emotional and factual landscape of the dispute. This background helps set the tone for a collaborative problem-solving approach rather than an adversarial one.
2. Explain How the Law Applies
It’s crucial to articulate how the law relates to the specific circumstances of your case. Be concise but detailed enough to explain the fundamental legal principles at play. Mediation isn’t about proving a point legally—it’s about finding common ground—so focus on the law in a way that informs the negotiation rather than seeking to “win” a legal argument. Make sure to highlight those areas where legal interpretations might diverge, as this can reveal space for compromise.
3. Analyze Strengths and Weaknesses—For Both Sides
One of the most helpful aspects of a mediation brief is a frank analysis of the strengths and weaknesses of both sides of the dispute. A realistic assessment shows that your client is prepared to engage in good faith discussions and has considered all aspects of the case, including the risks. It demonstrates your awareness of the mediator’s role in fostering an objective view of the case.
4. Summarize the Negotiation History
Providing the mediator with a summary of previous settlement discussions is invaluable. What offers have been made and rejected? Have there been moments of near-agreement, or has there been a consistent deadlock? If there have not been any negotiations between the parties prior to the mediation, explain why.
This context will allow the mediator to understand how both sides have approached the negotiation so far and where potential opportunities for movement may lie ahead.
5. Explain Your Approach to Settlement Negotiation
Detail your client’s approach to settlement, including a specific explanation of how you conducted your case evaluation, how prior demand and offer calculations were made, and what the settlement range might be moving forward. The mediator needs insight into the numbers and the reasoning behind them. What factors are driving your evaluations of value? Are there non-monetary terms that could be important? Giving the mediator this information enables a more nuanced resolution structure.
What to Avoid in a Mediation Brief
1. An Effective Mediation Statement Does Not Resemble an Arbitration Brief or Brief Accompanying a Dispositive Motion
A mediation brief is not the place for grandstanding or aggressive legal arguments. It should not read like an arbitration brief or a summary judgment brief. What’s more - for cases already in litigation or arbitration, it is completely unhelpful for counsel to send their last brief to the mediator in lieu of a proper mediation brief (unless included as an attachment to the mediation brief). Focus on facilitating a productive conversation rather than laying out an irrefutable case.
2. Avoid Using the Brief as a Platform to Attack the Other Side
While mediation briefs are confidential and often not shared with the opposing party, counsel should be forthcoming with the mediator about the dynamics between the parties, including any challenges in the relationship. However, focusing too heavily on attacking the other side’s credibility or motivations can undermine the process. In reviewing the brief, a mediator hopes for honest insights to understand the conflict. An overly negative tone may skew the conversation and hinder the mediator’s ability to foster productive dialogue from the outset of mediation. A more effective approach is to provide a balanced perspective that openly addresses relationship issues while maintaining a focus on problem-solving and resolution.
3. Refuse to Share Information with the Other Side Before Mediation
While some sections of a mediation brief may remain confidential between counsel and the mediator, there are situations where sharing parts of the brief with the opposing party can help facilitate productive discussions. If key information hasn’t been exchanged before the mediation, sharing select portions of the brief (and relevant exhibits) can foster transparency and ensure both sides have a clearer understanding of each other’s positions. However, in sharing the brief with opposing counsel, it’s crucial to avoid including inflammatory statements that could provoke the other party and derail the mediation. Focus on sharing balanced, constructive insights that will help move the negotiation forward rather than content that might inflame tensions.
4. Avoid Practical Settlement Considerations
Do not ignore practical considerations that could impact settlement negotiations. A mediation brief should also consider elements beyond the purely legal—such as timing constraints, ongoing relationships between parties, and any outside pressures. These factors often play a crucial role in shaping the most viable path toward resolution.
Final Thoughts
A well-prepared mediation brief is your best opportunity to help the mediator understand not just the legal case but the broader picture, including the parties' interests, needs, and emotional drivers. It should be informative, balanced, and, above all, aimed at facilitating constructive dialogue and creative problem-solving. By avoiding the adversarial tone of an arbitration or litigation brief and focusing instead on fostering a spirit of cooperation, you will set the stage for a productive mediation process that maximizes the chances of a successful resolution.