The Brief Part 2: Know Your Audience (But Don’t Forget Your Mediator)

Know your audience when writing mediation briefs. And know you’re rarely writing for an audience of one. Sometimes you write for your client, opposing counsel, the opposing party, or just yourself. The mediator is probably the least important on your stakeholder list. Include core elements, and your brief will work for us.

Writing for Your Client

Ours is a client service business. Law school may have promised that you’d become master of the legal universe. But soon after graduation reality hits: your job ishelping clients. Legal expertise is table stakes.

The best lawyers resemble hospitality professionals more than surgeons. We can’t cover our clients’ faces when we work.

Mediation briefs are part of that hospitality experience. Sometimes clients need a “zealous” brief. Full of vim and vigor, with full throated, red blooded, attacks on the other side. Don’t share these across the table. But sometimes you must write them.

Special considerations may arise if you’re dealing directly with business units, working through finance or the CFO. Tailor briefs to show you understand business operations, not just legal issues.

And sometimes your client needs you to write for a client’s particular family member.

If your client reviews the brief, they are your most important audience. Briefs show you understand your client, their needs, and that you prioritize their interests above all.

Writing for Yourself

Sometimes you just need vent. Discovery’s unfair. The other side delays, takes untenable positions. Confidential mediation briefs are a fine place to vent. Especially if writing it down and sending it off to someone who will listen improves your headspace at the mediation. You hired the mediator. If you need them to hear you out, more power to you.

Use mediation briefs strategically within litigation lifecycles. Safe your future self time. Write them as draft legal motions. If you’ve got a MSJ or class cert on the horizon, test arguments with your mediator. If mediation fails, you've got a motion draft ready.

Writing for the Other Side

Write this brief to be shared. Sometimes you want to communicate specific facts, legal arguments, settlement offers, or documents directly. Or explain why your case has that “hook” that busts the policy or turns a dry wage and hour matter into a compelling story. The mediation brief is a perfect vehicle to do so.

But if you’re writing to share, then think about effective communication. Cut adjectives. State facts plainly. Resist accusations. Don’t do more harm than good. Your message must be read and understood.

If your style leans zealous, then work with your mediator to ensure your message gets heard, not reacted to. This isn’t all or nothing. Submit one brief to the other side, another confidentially to your mediator.  

Class Cases: see my prior post. At a minimum, exchange damages models pre-mediation.

Writing for The Mediator

We’re your least important audience. We understand you have more important stakeholders. You hired us to sift through whatever you provide, in whatever form, and to be prepared on mediation day. But whatever the tone, whoever you are writing for, we’ll appreciate if you include:

·       List of key players with titles and one sentence explanation why they matter

·       Well-constructed timeline

·       Summary of claims or the operative complaint

·       Damages analysis with supporting documents

·       Summary of prior resolution discussions and challenges to resolution

·       Procedural posture

·       Key documents with short statements of significance

·       Legal analysis, especially for novel issues

Legal analysis comes last for a reason. Experienced mediators understand legal issues from players, timelines, and documents alone. If there is a key case you want us to read or if you’re thinking of advancing a novel legal theory, then flag it early. Otherwise, unless you’re drafting the mediation brief like a future motion, spend time telling the story, not providing Rutter summaries.

Mediation scheduled. LLM prompted. Brief drafted. You're ready for your pre-mediation call. Next week: how to make that call count.

Until then,

Monday x Morello Mediation.

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