Mediation Message No. 16

TO BRIEF OR NOT TO BRIEF

Message no. 2 discussed what information should be in a mediation brief and also recommended that the brief be sent “several days before the mediation so that (the mediator) will have the time to digest it and to research important legal issues.” This message covers other important aspects of mediation briefs and makes another request for their early submission.

A brief should be filed in every mediation. Attorneys who do not file briefs, because of the supposed simplicity of the relevant facts or law or the lack of time to do so, forgo the opportunity to direct the mediator’s early attention to issues important to their respective cases and cede to their opponents that same opportunity to influence the mediator with a one-sided summary of the facts and law.

Attachments and exhibits should be on point. The inclusion of photographs of injuries and accident scenes, of maps of property disputes and of contracts containing key terms applicable to the dispute are very helpful to mediators in understanding the case at hand. Not so helpful are reams of paper, such as voluminous medical bills or entire deposition transcripts, which do not explain or clarify what can be easily summarized in the brief, itself.

Send the brief several days before the mediation. Treat the filing of a brief like a motion. Impose upon yourself a deadline for sending it to the mediator a sufficient time before the agreed-upon meeting date so that he or she has ample time to analyze and appreciate your contentions. Briefs filed the day before or on the day of a mediation will be read but will not have the same impact as those sent ahead of time.

Copyright, Michael D. Marcus, July 2004

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