Mediation Message No. 2

THE MEDIATION BRIEF

A mediation brief should be prepared with the same care as any Superior Court motion because the mediator, while not having the capacity to issue final orders, can nevertheless be very influential. Therefore
• Indicate whether or not the brief is confidential;
• Provide important case status information on the first page (e.g., the trial date, the results or future date of any summary judgment motion, the status of pending discovery, etc.);

• Provide a persuasive but brief introduction which incorporates the theme of the case and which will attract the mediator’s attention;
• Make the summary of facts interesting. Support them with exhibits where necessary;
• Briefly analyze applicable statutory and case law;
• If you are the plaintiff or cross-complainant, identify all potential damages, including the possibility of attorney’s fees where a relevant statute or attorney’s fee clause exists;
• When the brief is confidential, discuss weaknesses (legal, evidentiary and factual) in your case which you know the other party will bring out;
• When the brief is confidential, discuss weaknesses in your opponent’s case (of which they are and are not aware);
• Discuss all settlement offers and the status of such and
• Send the brief to the mediator several days before the mediation so that he/she will have the time to digest it and to research important legal issues.

Copyright Michael D. Marcus, May 2003

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