Tips from Mediators
What do mediators want to see in a mediation brief? How long should it be? How much detail should it contain? What exhibits should be included? What initial offers should be presented? How much advocacy should there be?
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I like to see mediation briefs that set out the relevant facts and law accurately, simply, directly and persuasively. There is nothing wrong with a lawyer being a strong advocate
for his or her client’s position and putting that position in the best possible light in the mediation brief.
The tone of the mediation brief is often more important than its substance. The brief should articulate a persuasive, but not overbearing or preachy, position. Many times mediation briefs are drafted as if they are meant to convince the mediator of the strength of the party’s position.
Briefs are also sometimes drafted as if counsel believe that the more forceful and assertive their arguments are, the more likely the other side will be compelled to accept the logic of their client’s position. This written posturing does little to get the parties closer to settlement, and will often have the opposite effect.
When the content of the brief misrepresents or exaggerates the facts or the law; fails to address legitimate points of dispute; or is clearly self-serving, it will work against the client’s interests. Similarly where the tone is argumentative, patronizing or self-righteous, the other side is not likely to be swayed towards acceptance of the position being advocated. More likely, the response will be retaliatory and equally unrealistic.
Besides offering an open forum in which to pursue settlement negotiations, one of the valuable purposes of mediation is that it enables the parties and their counsels to directly assess the demeanour and “likeability” of the other side, as would be seen by a judge should the matter not settle and ultimately go to trial.
If there are factual considerations that would gain a judge’s sympathies, the mediation brief can outline those fairly and realistically. (How would each party be perceived by a reasonable and open-minded adjudicator?)
It is always helpful when a mediation brief sets out what offers have been made. That allows me to assess where the parties stand, relative to each other and to a realistic assessment of the value of the plaintiff’s case. It is then easier for me to determine the most effective approach to take in the mediation with the parties openly and in caucus.
Steven C. Gaon, B.A., J.D., C. Med.
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Lawyers often prepare mediation briefs that strongly advocate their client’s position. They often include pages and pages of jurisprudence. Briefs contain statements things like, ‘We will only consider a dismissal of the action without costs (in the case of a defendant, for example). My own experience suggests that this is usually ineffective in persuading the other side that they have a weak case. It also typically does not help the mediator facilitate a settlement.
I would encourage lawyers to set out their position succinctly and persuasively, but to avoid becoming overly aggressive or adversarial, which can hamper settlement efforts at mediation. If the goal is to settle, put forth a strong case but state in your brief that you are prepared to bargain and you recognize that compromise will be necessary.
I like when offers to settle are contained right in the brief. They save time. (Obviously you have to be strategic about the actual proposal in the brief – making sure it sends the right message about your willingness to settle, without appearing as a capitulation of some kind.)
Regarding what should be included in the brief, it is vital to include all documents that have a bearing on your settlement position. For example, if you are acting for a personal injury plaintiff, then mediators (and defendants) don’t need the 57-page hospital record or 1972 SCC case, but we do need the expert medical report you’re relying on, the actuarial analysis of future income loss, the cost of future care report, etc. In other words, we need the documents that support the dollar figures in the offers you intend to put forward at the mediation.
Rick's Website - Click on Photo
The content of a mediation brief is always an interesting issue. For various reasons, depending on the stage to which the action has progressed, counsel may elect not to disclose all documents in their mediation brief, since certain things may be held in reserve to use either after the mediation has started or subsequent to a failed mediation.
That having been noted, in my view the mediator’s role is, in part, to “push back” with each party, with a view towards having them appreciate the risk they are taking on if they do not resolve the case. The mediator, therefore, needs to have the ammunition in the briefs that can be used when caucusing with each party.
I think the best mediation briefs are the ones that clearly and succinctly lay out the factual background and the issues. There is no reason to be overly verbose, and confusion should be avoided at all costs. The degree of length and detail will depend on the complexity of the case. However, in personal injury actions, it is really quite unnecessary to provide the mediator with all of the medical reports and hospital records. A summary of the salient points in the medical records is best. With regard to offers, I always like to know what offers have been made.
Kevin's Website - Click on Photo
When I was practising, I always used my mediation brief as a first run for my settlement conference brief. That way, if the mediation was not successful at resolving the matter, I had my settlement conference brief almost finished.
I like receiving as much detail as possible in a party’s mediation brief. I find that I often use information that is in the brief and the attached materials when I am discussing the issues with the parties and counsel. Often one piece of information can break a log jam in the negotiation process. That being said, I do not endorse throwing in information that is not relevant to the true issues in dispute in the matter. For example, I don’t necessarily need to see case law on the threshold in a motor vehicle matter unless is it directly on point.
Case law can be very helpful if it goes right to the heart of an issue. It can also be very effective in removing artificial arguments being raised by a party. Removing issues that should not really be in dispute allows us to get to the heart of the dispute. If there is a case out there that lends solid support to your position, you should include it.
Expert documents can also be very helpful if they are relevant to the issues. If you intend to rely on them in the mediation, it is a good idea to include them in your brief, so that the mediator can be educated about their contents. You really handcuff the mediator if you don’t provide him/her with a copy of a report that you intend to rely upon.
Personally, I like to know about all settlement negotiations that have taken place prior to the mediation. The mediator should really know what attempts at settlement have already occurred, and it makes no sense to keep the mediator in the dark about prior offers/counter offers. Since the mediator cannot impose a decision on the parties at the mediation, there is no good reason to withhold this information.
Lastly, I expect a party to advocate for his/her client in their mediation brief. Put your best case forward, just as you intend to do in your client’s settlement conference brief. Be concise, be accurate, and be persuasive.