Who Is Reading Your Mediation Brief?

by | March 2023

Michael Ludwig outside smiling

As an employment mediator, I have the privilege of working with some of the very best employment attorneys around. I ask for mediation briefs to be submitted a week before the mediation because the briefs I receive usually are so well constructed and thorough that I want to have ample time to study them and prepare.

The mediation brief usually is prepared for the mediator, but it probably also will be read by your client, and, in some instances, it can be helpful to share it with the other side. In preparing the mediation brief, it is important to understand that the impact it has will vary depending on who is reading it.

Consider Sharing Your Mediation Brief with the Other Side

Most mediation briefs are written to educate the mediator. Attorneys aspire to use the brief to give the mediator ammunition to effectively advocate their position to the other side. But have you considered sharing it with the other side yourself?

Sometimes sharing a mediation brief with the other side, when the brief was prepared with that in mind, can be a powerful start to a mediation process. Such a brief should accurately summarize evidence in your favor and acknowledge potential weaknesses in your case. This provides you an opportunity to explain right at the start how you will overcome such weaknesses, and it may be your best opportunity to share your position with the other side.

If there is information you want to keep confidential in the event the case does not settle, that information still could be shared with the mediator in a pre-mediation phone call or even a separate confidential brief intended just for the mediator.

Make Sure Your Client Understands the Purpose of the Mediation Brief

For plaintiffs and defendants in employment disputes, mediation is a big day. The mediation day provides a hopeful end to time-consuming and often stressful litigation. For a plaintiff, it can provide a catharsis after a traumatic life experience and an opportunity to move on from that experience. For a defendant, it can be an opportunity to manage risk and obtain finality. When your client reads your mediation brief, they are likely to be happy that you have effectively advocated for their position.

But they need to be reminded that your mediation brief is intended to advocate and persuade. A client may read a particularly persuasive mediation brief and be emboldened in their position at the same time you and the mediator are going to ask them to compromise. So, share your mediation brief with your client along with a dose of reality. Remind them of the counterarguments. If you exchange mediation briefs, the other side’s brief also can provide your client with the other side of the story, and perhaps put them in a better frame of mind to compromise.

Include What All Mediators Want to See in the Mediation Brief

Most seasoned mediators expect to see a comprehensive factual discussion in the brief, and they do not need to see lengthy legal analysis except on nuanced issues of law. But every mediator wants to know your theory of potential damages and the history of settlement negotiations.

Too often this information is given short shrift at the very end of the brief. Your theory of potential damages (even if you are a defendant denying any liability) can provide an early framework for settlement negotiations. A well-crafted damages analysis can explain or guide an opening demand or offer, and sometimes can help avoid the early insult rounds of settlement negotiations.

The history of settlement negotiations can do the same thing. While parties often say that settlement postures change over time and prior negotiations may be irrelevant now, it still is helpful to know where the negotiations landed in the past, what were the obstacles to settling at that time, and what has changed since then.

Most employment disputes can, should and will be settled. An effective mediation brief is an important step in moving toward resolution.

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Hi I’m Mike Ludwig

I committed myself to honing my craft as a mediator and relentlessly learning everything I could about dispute resolution. I will endeavor to share thoughts and insights about some facet of mediation, negotiation, and dispute resolution, and other information that could be helpful or interesting to you.