The Mediation Brief (Pt. 1)

Most mediators request a mediation brief or statement. The names change, the concept doesn’t. Mediators want something to read that explains your position.

When You Don’t Need A Brief

Formal briefs aren’t always necessary.  You’re paying for the mediation. If you don’t want to brief, don’t. Some situations where briefs may not be warranted:

Cost

Some clients don’t want to pay for briefs, let alone the mediation. Alert your mediator. A short email outlining key claims or defenses, a timeline, and relevant exhibits attached, could be enough. Then hop on a call and talk through your case. Or maybe just a call works. The last thing mediators want: clients angrier than necessary at mediation. If that means extra time reviewing exhibits or creating our own timelines, so be it.

Time

Sometimes mediations are scheduled on short notice and it’s more efficient to send over existing documents. If your mediation brief would just rehash your winning MSJ opposition, just send motion and the order. If the mediation is scheduled on the eve of an MSJ, and your brief won’t add new information, just send over the briefing. Don’t reinvent the wheel. If the work’s already done, use it. Save yourself the time, save your client some money.

A Class Case Detour

For class practitioners: this is remedial. For dabblers: class mediations are different. Plaintiffs bring spreadsheets and less emotion. Defendants often bring the emotion. Neither side can roll in with a blank page. Both need damages models, preferably exchanged pre-mediation.

For Plaintiffs

Submit full briefs with a detailed damages theory and exposure analysis. Damages issues can’t defeat class cert, but showing how your case can be tried and won, class wide, will move the needle. Don’t want to share trial strategy? Submit the brief confidentially and work with your mediator to protect your trial strategy while disclosing the class-wide trial framework. At the very least, describing your end game on paper will help clarify issues on class certification, summary judgment, and eventually trial.

The damages analysis is essential. Show you have sufficient information (or where you’ll need more), evaluate fairly, then use that analysis to anchor merit-based discounts. You’ll have to present that same analysis to the court when seeking preliminary approval, so have your analysis and justification for any discount ready at mediation.

For Defendants

Only extremely rare situations don’t require briefs. Resist submitting 80 page tomes with indexes and TOCs that cite every district court. Keep it tight. If you can’t explain why plaintiffs don’t have a certifiable class in a pithy paragraph, you might have class-wide problems.

Work backwards. Start with why the case can’t be practically tried, then address formal class cert standards. In pre-cert mediations, draft with judges’ practical trial reality in mind. It will focus your class certification opposition if the mediation fails.

Class Mediations Are Different

More transparency. More math. More depth. Often treated as early trials. Briefs contain more legal argument and XLS attachments. Attorneys are more likely to caucus together. Keep these differences when drafting. Make your mediation brief something that you can use during the session itself.

Not Every Brief Should Be Shared

I can’t remember my last joint session in a single-plaintiff employment case. They’ve fallen out of favor because attorneys talk past each other, make “zealous” performances for clients, and the everyone walks away more entrenched than before.

Yet almost every employment mediator suggests sharing briefs. ResolveLA requires it. But if joint sessions are unproductive, then why exchange briefs that read like joint session speeches?

Before sharing, ask yourself: Do you like joint sessions? If not, talk with your mediator about whether to share.

Instead, consider sharing:

·       A neutral timeline

·       Key documents with a short (three sentences) statement why they matter

·       Key cases with pin cites (no summaries needed)

·       Three questions you’d like the other side to answer

And you don’t need to send these directly. Use your mediator. That’s part of what you’re paying for. Your mediator should present your points in a way the other side will actually hear and understand. That’s why you hired a mediator: to communicate effectively, to show empathy. So you don’t have to.

As we’ll discuss next week, the practical reality is you aren’t always writing your brief to help the other side understand. You’ve got other stakeholders to satisfy.

Until then,

Monday x Morello Mediation.

None of this is legal advice. Your mileage may vary.

Why Virtually Every Class Action Should Be Mediated: Lessons from Bartz v. Anthropic

Not all class mediations are the same. Remember: the substantive law drives the cultural norms at mediation. A wage and hour class mediation operates differently than consumer, product, or fair use cases; different language, different expectations, different rhythms.

Despite these differences, virtually all class cases should be mediated, even if you think you’ve identified a rare “Easy Decision” destined for trial. Timing varies (before or after class certification are common inflection points), but class mediation remains the rule, not the exception.

Judges Want to See Mediation

Even if you ultimately try the case, demonstrating good-faith mediation efforts benefits everyone. Judges notice.

Courts publish expectations. The Los Angeles Superior Court provides judges with a preliminary approval checklist (https://www.lacourt.org/division/civil/pdf/PreliminaryApprovalofClassActionSettlement.pdf) covering both PAGA and class cases. While some courts approve PAGA settlements through less formal procedures, hitting LASC checklist highlights remains good practice. Seasoned class/PAGA mediators guide parties through these requirements.

As described in the checklist, settlement agreements require explaining how resolution was reached. Mediation makes this paragraph write itself. Courts view mediation participation as evidence of arm's-length negotiation. And an arm’s-length negotiation creates a presumption of fairness at preliminary approval. Judges want to check that box: hard-fought mediation before an experienced mediator.

Pre-mediation exchanges can also be used satisfy your Dunk/Kullar investigation requirements. (California practitioners: read Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794 and Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116.)

Avoiding Discovery Hell

Formal class discovery is expensive and breeds motions to compel. Plaintiffs turn over every rock to prove adequate representation. Defense counsel reflexively objects – the discovery is always overbroad (and more importantly, their clients are not going to be happy when they learn the full scope of permissible class discovery).

Pre-mediation disclosures can change that dynamic. Experienced defense counsel will understand the investigation necessary to get a class settlement approved. And plaintiff’s requests will be more focused on requirements for preliminary and final approval, not comprehensive fact-finding. The parties can focus on identifying key documents, and statistically reliable samples, if appropriate. The process still often ends up being unnecessarily adversarial, but it is more efficient.

Prospective Relief and Policy Changes

Policy changes or other changes in a defendant’s behavior can be built into a class settlement. Those changes increase class value and provide some forward-looking protection. Courts and plaintiff's counsel rarely endorse new policies outright, but I've seen them agree that proposed policies don't facially violate the law. This "negatively framed" endorsement can deter future class actions.

Case Study: Bartz v. Anthropic

The recently settlement in Bartz v. Anthropic (Northern District of California) shows the pain when a case can’t resolve early, and mediation's effectiveness at the right time in complex negotiations. Big stakes, big companies, big firms. For class action or AI practitioners or nerds, read the preliminary approval motion and settlement agreement. Authors and rights holders should review the Author's Guild summary. (https://authorsguild.org/advocacy/artificial-intelligence/what-authors-need-to-know-about-the-anthropic-settlement/)

The Players

Plaintiffs: copyright owners of books.

Defendant: Anthropic, a privately held company (backed by Amazon and Google) that developed the Claude family of LLMs. As of this writing, Claude targets B2B markets while ChatGPT focuses on consumers, though this landscape shifts constantly.

The claim: authors deserve compensation for their works being used to train LLMs. Notably, likely because of Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015), plaintiffs confined allegations to downloading and using pirated versions of their works.

The Landscape

Similar cases abound: Disney sued MidJourney, The NYT sued Microsoft and OpenIA. UMG sued Suno. Text, images, video, sound, all copyrightable, all subject to AI litigation. McKool Smith, among others, maintains a tracker (https://www.mckoolsmith.com/newsroom-ailitigation-32); GW GW offers a more extensive database (https://blogs.gwu.edu/law-eti/ai-litigation-database/).

Hard Fought Litigation

Judge Alsup’s standing order in class cases prohibits settlement discussion without Court permission. After discovery began and while defendant's summary judgment motion was pending, permission arrived. The parties mapped out a plan, held multiple mediations, but the case didn’t resolve.

Full discovery and motion practice ensued.

·       Plaintiffs severed 186 RFPs, 29 ROGS, and 65 RFAs.

·       Defendants served 263 RFPs, 75 ROGS, and 395 RFAs.

·       The parties agreed to protective orders, ESI and hard copy protocols, and training data and source code review protocols.

·       Production exceeded 2 million pages, including on-site-only source code review, plus gigabytes of Slack messages, wikis, and Google Vault data.

·       Twenty depositions followed.

·       The Parties fought 17 discovery motions (with 11 hearings).

·       The court and a special discovery master were needed to guide the parties through this class discovery.

·       Third-party and expert discovery added complexity.

Then Motions. Defendant's summary judgment motion: granted in part, denied in part. Plaintiff's class certification motion: granted on July 17, 2025.

The parties spent millions on class discovery and motion practice. Bartz is a special case, but the scope of class discovery and the cost of discovery and motion practice is not. Class discovery and motion practice punishes everyone.

Resolution

After the MSJ and class certification rulings, settlement discussions resumed. The parties retained Judge Layn Phillips. If you know Judge Phillips's reputation, it is not a surprise the parties chose him to help them reach resolution.

Extensive pre-mediation calls with Judge Phillips preceded the August 19 in-person session. The case didn't settle that day, but the foundation was laid. Negotiations continued through the weekend of August 22-25. Late on August 25 (August 26 East Coast time), the parties executed a binding term sheet, subject to court approval and settlement procedures.

Getting the right parties to the table mattered. An “Author-Publisher Working Group,” led by the Author's Guild and Association of American Publishers, advised class counsel on author and publisher interests. Judge Phillips remained on retainer to resolve intra-class or defendant disputes. Beyond monetary relief, the settlement included prospective relief.

Three elements drove resolution: identifying and involving all interested parties, timing (or getting sufficient guidance from the court, and retaining an expert and creative mediator (who was willing to go beyond just a single day mediation). Well, that and 1.5 billion dollars.

Preliminary Approval

Then they submitted their preliminary approval motion to the Court. Judge Alsup has a reputation for scrutinizing class settlements. He didn't disappoint. After an initial hearing, he sent parties back to revise. Then came 34 written questions a week before the next hearing. Counsel responded with answers and supplemental briefing. On September 25, 2025, the court granted preliminary approval.

Lessons

Bartz shows the full class action lifecycle: early resolution attempts, massive discovery when settlement fails, novel legal issues, then intense mediator-assisted negotiations. This first-of-its-kind resolution may function as a bellwether settlement, setting the market for future cases.

Bartz involves cutting edge legal issues most class practitioners won’t deal with often. But the lifecycle it demonstrates applies broadly. Congratulations to all parties and Judge Phillips for navigating to preliminary approval.

Monday x Morello Mediation.

None of this is legal advice. Your mileage may vary.