Mediation Briefs
Mr. Lawson prepares extensively for each mediation, and your mediation brief is an essential component of the process. Parties should not and do not enter lightly into mediation, which is a significant milestone in any litigation. The more time, thought, and attention you devote to your mediation brief, the more fully the mediator will be familiar with the strengths of your client’s position.
The following guidelines are intended to answer basic questions regarding the submission of mediation briefs, as well as offer suggestions to maximize their utility.
Confidentiality
Mr. Lawson encourages the parties to exchange mediation briefs. When attorneys do not send their briefs to opposing counsel, the mediator is forced to spend valuable mediation time educating the parties about facts and laws in contention. If a party doesn’t want the opponent to know about specific facts, legal theories or arguments, they should put them in a separate, confidential brief for the mediator and set forth the other facts and contentions in a non-confidential memorandum to be given to opposing counsel.
Method of Submission
Mediation briefs and accompanying exhibits may be submitted via email or, if you prefer, using an FTP site or other alternative means.
Deadline
Generally speaking, mediation briefs are due five business days in advance of the mediation. However, calendar complications may require a different deadline, so check the confirmation email you received to determine the specific deadline in your case.
If it will be difficult to comply with the stated deadline, please contact Mr. Lawson as early as possible to determine if a later deadline can be arranged.
Format
Mediation briefs may be presented either as a “pleading” or in the form of a letter. That said, Mr. Lawson prefers letter briefs, which encourage a more candid, informal, and effective communication style.
Style & Purpose
A mediation brief is most useful when it sets forth a cohesive narrative that provides information and arguments that the mediator can use to leverage the other side. Avoid hyperbole and unbridled advocacy, both of which are distracting and can even diminish credibility.
The purpose of your brief is not to persuade the mediator to adopt your perspective and condemn the other side’s view as somehow illegitimate or unworthy. The goal is instead to cogently present the factual evidence that supports your legal theories and/or defenses. Think of your brief as a toolbox you are handing the mediator.
Content
Your mediation brief should include:
An introduction, briefly setting out the basic outline of the case, including the most relevant legal claims. (If you want to list literally every cause of action asserted, do so in a footnote or include the operative pleading as an exhibit. What is most helpful for the mediator to know is which claims form the essence of the case.)
The procedural status of the litigation, including what discovery has been completed and what important discovery remains to be completed.
A summary of the facts. Tell the story from your client’s perspective.
A legal discussion connecting the material facts to the relevant law. If any party’s position depends on a novel or untested reading of the law, it will help for the brief to explain that.
Identification of what you believe are your client’s strongest leverage points (which could be factual, legal or intangible).
Identification of what you believe are your opponent’s motivations, touch points, and vulnerabilities.
A discussion of damages.
A summary of any prior settlement negotiations.
Any important exhibits.
Please do not submit a summary judgment motion or complaint in lieu of a mediation brief, as the content, emphasis, and overall objective of these documents is not typically as helpful to the mediator as a brief of the type described above. If you believe the mediator would benefit from having a copy of your motion or complaint, feel free to submit it as an exhibit.
Supporting Evidence
Don’t exaggerate. If you state a fact, be sure you can back it up. If you characterize a document, be certain it genuinely says what you claim. If you reference deposition testimony, be sure you haven’t stretched it beyond what a transcript, if examined, would support. If you do allude to deposition testimony, it is helpful if you include, as an exhibit, a highlighted copy of the relevant transcript pages.
Supporting Case Law
Mr. Lawson has practiced employment law – from both sides – for more than three decades. Therefore, while it is useful to have a section that connects the dots between the facts in the case and your legal arguments, you do not need to include a lengthy recitation of basic employment law concepts (e.g., prima facie elements or burden-shifting paradigms). To the extent you do refer to legal authorities, please include substantive parentheticals, not just the case citation.
Declarations
It goes without saying that litigation is often accompanied by distrust between the parties. As a result, it can be difficult to generate compelling leverage based solely on an attorney’s representation of how a witness will testify. Sworn declarations, by contrast, often prove persuasive, especially those that focus on the declarant’s personal knowledge of relevant facts (as opposed to unfounded or conclusory opinions).
Pre-Mediation Call with Counsel
Mr. Lawson believes that the more preparation he and the parties put in prior to the mediation, the more likely a matter is to settle. To that end, Mr. Lawson asks that, separately, counsel for the parties spend 15-30 minutes on the phone with him after mediation briefs have been delivered, but before the day of the mediation. This call provides a good forum for discussing some of the intangibles involved in the dispute—emotional triggers, personality quirks, longstanding sticking points, particular concerns of the judge or arbitrator, insurance-coverage issues, and other aspects of the conflict that either may not be obvious from the briefs or may not be appropriate to include in them.