Mediation Briefs: The Right Way ©

 

 

 

                                                By Dave Finch

 

Abstract:  The mediation brief accomplishes a number of salutary purposes and should be prepared by the negotiator with these purposes in mind, and delivered well in advance of the first mediation session.  Content should avoid the style of the pleading, and employ rhetoric that amplifies without distortion the chosen theme of the case.

 

          Your Dad probably at some time in your young life said to you:

“A job worth doing is a job worth doing right.”  There is little dispute of the proposition that a mediation brief has a number of significant purposes as we shall mention.  The experience of mediators, however, is that some of these purposes are shortchanged by the busy lawyer who seems simply to want to inform the mediator as to the nature of the dispute.    

          Given variations due to individual differences and special circumstances of the case at hand, not all experienced attorneys and negotiators will follow every prescription outlined here.  However, we observe the achievement of greater effect in negotiation by those who make the effort to do the job right.

          Purpose of presentation.  The mediation brief has far greater potential value than merely the education of the mediator, as important as that function might be.  The well prepared brief delivered to one’s opposition, sufficiently in advance of the mediation, accomplishes several success promoting objectives:  it shows that the negotiator is working the case diligently and has invested time in thoughtful preparation earning thereby the respect of the adversary; it helps to assure that the adversary is acutely aware of the salient valuation factors to be advanced; it provides the adverse decision makers with a comprehensive review of the case while discouraging over-optimism with respect to their position; it disciplines the negotiator’s own thinking and working up of the case; helps identify an effective theme; and provides a useful script to follow in the oral phase of negotiations.

          Content is king.   So what is a well-prepared brief?  What it is not is a rehash of the pleadings or a recital of the party’s position.  Much mischief has resulted from the common reference to the brief as a “position statement”: useful  in advising the mediator of the issues to be discussed, but little more.  A well prepared brief is organized so as in some logical progression to lay out in factual detail those facts, which are essential to an evaluation of the claim or assessment of the defense.  On the claimant’s side it will include a portrayal of the facts of the incident, transaction, or behaviors of the opposition that give rise to the injury or loss, which include such demonstrative aids as excerpts from consultant reports, official records, depositions or statements, photographs, charts and diagrams, and the like; it will set out in easy to follow form and without exaggeration or vagary, the various elements of loss and the dollar value assigned to each with subtotals and a grand total;  where general damages are claimed it will include some basis for the amount demanded such as evidence of jury verdicts in similar cases, or a rational comparison to some other quantifiable experience, such as the cost of anesthesia to support a pain claim or the cost of advertising to support a reputation loss claim;  where defense contentions can be anticipated the brief will include a discussion of those and the reasons why they are of limited importance or value to the defense; and finally where there are differences as to the legal rules that apply, a scholarly discussion of the law from the claimant’s perspective.

          The defense brief will be similarly organized and the argument will also be supported by demonstrative aids.  It is not uncommon in mediations for one party or both to come to the table with strongly held opinions based upon a misunderstanding of the facts of the matter.  Demonstrative photos, reports, diagrams and the like are the “pictures worth a thousand words” and can provide the education in minutes that might otherwise take up hours of expensive time.  Those strong opinions begin to melt under the warm light of demonstrated fact. 

Many defense counsel, it must be said, choose to play their cards close to the vest by offering little in the way of argument or demonstrative evidence.  That approach is characteristic of the aggressive or non-cooperative style of negotiation.  Where, however, the highly effective cooperative approach is employed on both sides, a comparison of photos and other evidence is common.

          Accuracy is actuating.  In many cases each side assumes the other will exaggerate or even prevaricate.  A brief in which no inaccuracy can be found, even where exaggeration was not expected, has the effect of demonstrating preparedness and confidence: and where exaggeration was expected disarm the opponent and actuate an effort to reach agreement.  One who can state the case with reasonable and compelling rhetoric, which does not distort or conceal, motivates the opposition to do likewise.  A brief that seems to present the matter inaccurately will likely be given little attention by the adversary who will certainly not be actuated to respond in a productive way.

          Early submission advised.  The brief should be provided to the opposition well in advance of the first mediation session; otherwise the first mediation session will not likely be the last.  This is especially so in cases in which the settlement decision will be made by or require the approval of a person or group remote from the negotiator’s opposite number.  Insurance companies for example will general confer evaluation authority upon a committee.  If the committee has met two weeks before the mediation, but has not seen the negotiator’s brief, the opposing attorney may come to the table with inadequate settlement authority: progress will be frustrated and the problem cannot be solved with a phone call.  Government agencies, corporate boards or officers, or other organizational decision structures may need to be accommodated by a brief submitted to them well in advance of negotiations and it is useless for a negotiator to take the position that “it’s their problem”, if they don’t know all the valuation factors.  An effective use of the mediation session may in those circumstances depend upon the negotiator taking the proactive step of getting the needed information into those remote hands well in advance.

          Conclusion.    While some may get their way in a mediated negotiation by the use of aggressive attempts to intimidate and outmaneuver the opposition, the truly successful mediation is one in which something very close to complete understanding of the valuation factors is achieved on both sides.  Anticipating the need for a comprehensive, demonstrative, educational, accurate and therefore a persuasive brief, submitted early enough to influence the thinking of the decision maker, greatly increases the chances for such understanding. 

 

          Rights reserved © 2008