Litigation Strategy New Lawyers Settlement Negotiation

The One Thing to Do to Maximize Mediation Success

typing out deposition notice on laptopThe following is a guest blog post by Teddy (Theda) Snyder. Ms. Snyder is based in Los Angeles and conducts civil and workers compensation mediations throughout California.

Careful preparation of a mediation brief is the best way to achieve the optimal settlement result. The exercise forces you to organize your case and create guideposts for the settlement negotiation.

I’m always astonished by lawyers who waste the opportunity to enhance their negotiation result. These are the lawyers who:

  • Don’t prepare a brief: “You don’t need a brief, Ms. Mediator; it’s just a simple case.”
  • Deliver the brief at the mediation: “Sorry, I couldn’t get it to you earlier.”
  • Write and attach irrelevancies about the case in the brief, but don’t include important information. What is the mediator supposed to do with an obsolete medical report when the issue is future care?

Why prepare a quality mediation brief? It helps you and the mediator by

  • Defining the issues. Writing a brief forces you to define the issues. It’s less likely you’ll miss an issue if you start writing well in advance, allowing adequate time for review.
  • Alerting the mediator to the issues. You’ll get the most benefit from mediation by having alerted your mediator to the issues and suggesting why those issues tilt in your favor. A party who doesn’t brief the issues allows the other side to define the discourse.
  • Shortening the mediation. Lack of a brief unnecessarily lengthens the mediation. The mediator is probably being paid based on the time spent in mediation. Send your brief to the mediator ahead of the mediation so the mediator has adequate time to review it, or you’ll pay for the mediator’s time to peruse your brief at the mediation. You don’t want the mediator to spend the first hour—or two or three—digging out the issues because there was no brief or an ineffective one. And mediation can be exhausting; short-cutting the mediation by defining issues in advance can keep participants at their best.

If you’re unsure how formal to make your brief, contact the mediator and ask. It may be that a letter or email message is adequate.

Keep in mind that the mediation brief you send the mediator is confidential. Information disclosed to the mediator in the course of mediation isn’t discoverable, including pre- and post-mediation communications. And the mediator can’t be subpoenaed.

You decide whether to share your brief with the opposing party. This allows you to control when to disclose your “smoking gun”—maybe not until trial. Some parties prepare two briefs: one for the opposing party and one for the mediator. More commonly, a party prepares just one for the mediator, but can decide whether to share that brief during mediation.

Check out Teddy Snyder speaking in CEB’s webinar Effective Mediations: Maximizing the Value & Negotiation Tips from the Experts, available On Demand. For more on mediation briefs in the appellate context, including a sample brief, turn to CEB’s California Civil Appellate Practice §§15A.38-15A.39. For mediation briefs in a wage and hour dispute, see California Wage and Hour: Law and Litigation, chap 13.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2019. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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