MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 126
EXCHANGE MEDIATION BRIEFS
There are no compelling reasons for opposing counsel not to exchange mediation briefs. (Okay, there might be one, and I’ll get to that shortly.) Because most attorneys don’t share their mediation papers with the other side and, with the demise of the joint caucus at mediation, unless the mediation takes place after substantial discovery has commenced, the parties don’t know their opponents’ factual and legal theories. Thus, mediators must spend valuable time in the beginning of the process educating the parties about the facts and laws at issue.
Ironically, attorneys rarely have any problem with mediators discussing the contents of their briefs with opposing counsel. In fact, they often consent to mediators sharing the respective briefs. At the end of the day, experience has proven time-after-time that there are few issues parties keep secret throughout the mediation.
The only sound reason for not exchanging a mediation brief is if it contains either a fact (perhaps a smoking gun) or a legal tactic (discovery or motion) that should be held in abeyance. But that’s easily resolved; if you don’t want the opponent to know about facts, legal theories or arguments that are best held in reserve, put them in a separate, confidential brief for the mediator and provide the known facts and contentions in a non-confidential memorandum. So, rise up and free yourselves from the shibboleth of the confidential mediation brief! Enjoy the exhilaration of openness! Be radical and start a trend of exchanging mediation briefs! And, in the process, make mediations more effective.
Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
Copyright Michael D. Marcus, October 2016