Posts Tagged ‘mediation brief’

Mediation Message No. 38

Attendance, Participation Lists and Mediation Statements

With little advance warning or fanfare, the Judicial Council reorganized, renumbered and, in some instances, amended the Rules of Court on January 1, 2007. The most dramatic changes in the standards applicable to court-ordered mediations (3.850 through 3.878) are in Rule of Court 3.874, which covers attendance at mediations, the serving of participation lists and the submission of mediation statements.

Attendance. Former Rule of Court 1634 was quite simple; it required essentially that “The parties shall personally appear at the first mediation session, and at any subsequent session unless excused by the mediator” and that “an insurance representative of a covered party also shall be present or available at such sessions, unless excused by the mediator.” Rule of Court 3.874, subdivisions (a)(1) and (2), continues to require the personal attendance of the parties, their counsels and insurance representatives at all mediation sessions, unless excused, but now the party, attorney or insurance representative whom the mediator has excused from attending the session or has been allowed to participate by telephone “must promptly send a letter or an electronic communication to the mediator and to all parties confirming the excuse or permission.” (Subdivision (a)(3).) Note that the notice obligation is on the person excused and not the attorney for the party. The change in rule 3.874 that the parties, counsels and insurance representatives “must (rather than shall) attend all mediation sessions in person, unless excused” is of no moment because Rule of Court 1.5, subdivision (b)(1), provides that “’must’ is mandatory.” Los Angeles Superior Court Rule 12.15, which tracks substantially the language in former rule 1634, still requires that insurance representatives “shall” be present or available, unless excused.

Participation lists. Under subdivision (b)(1), the parties are now required, at least five court days before the first mediation session, to serve a list of their mediation participants (which includes the parties, attorneys, representatives of parties that are not natural persons and insurance representatives) on the mediator and all other parties. Supplemental lists must be served promptly to reflect the presence of additional persons.

Mediation statements. Also new is that a mediator may request “that each party submit a short mediation statement providing information about the issues in dispute and possible resolutions of those issues and other information or documents that may appear helpful to resolve the dispute.” (Subdivision (b)(2).)

Copyright, Michael D. Marcus, April 2007

Mediation Message No. 16


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

Mediation Message No. 2


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