July 17, 2009 · Filed Under Mediation - General · Comment 

Fine and experienced lawyers come to mediation having submitted an elaborate and highly informative brief to the mediator alone!  What is the rationale for this practice.

I speak here not of those cases in which a litigant deems it necessary to keep his trial strategy close to the vest, or in which it might be deemed unwise to inflame the passions of the opponent by incriminating information that the mediator is wanted to know about.   No, here I speak of the run of the mill controversy in which the parties simply have a different understanding of the facts and/or the law, and where communication between them of their respective thoughts on the matter might well bring them into agreement.

It should always be borne in mind that at the heart of mediation is negotiation, and the soul of negotiation is communication.  If one comes to mediation intending to let the mediator do all the communication with the other side for him, he will not be heard to complain if it is done with less passion, less clarity, less legal authority than a well crafted and supported brief can do it.  See my article on negotiation, under Articles.

The confidential mediation brief is rarely necessary and misses an opportunity to communicate effectively with the opposition.