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.