Wednesday, August 10, 2011

Mediation briefs

I received a mediation brief a few weeks ago from the plaintiffs' side in a contractual dispute. The brief contained a detailed description of the parties' agreement, a recitation of the elements of each one of the various causes of action in the complaint, a calculation of the damages due under the contract, including precise interest calculations, and an explanation of why attorneys' fees were recoverable. It also attached the relevant contractual documents as exhibits. Sounds like as much as any mediator could wish for, right? What else would I possibly want to know about the plaintiff's position? It turned out, however, when I saw the defendant's brief, that nothing in the plaintiff's brief was seriously contested. The real problem was that the defendant simply could not pay what was due under the contract. In fact, the defendant was contemplating filing bankruptcy.

Are mediation briefs important? I will admit that I find most of them less helpful than they could be. A lot of the briefs I get don't even seem to be written for the purpose of mediation, and don't address some of the questions that I am interested in, as a mediator. I appreciate that attorneys may have a legitimate, even commendable desire, to spare their clients from being billed a lot of hours for writing a pre-mediation brief.  They also frequently believe that what they say in the brief is not going to affect the mediation very much. They know that it is ultimately the parties, not the mediator, who are going to determine whether or not to settle the case. So why bother trying to influence the mediator, who is not a decision-maker anyway? If those are the dominant considerations, then it is easy to understand why a lot of mediation briefs look like a cut-and-paste job from the parties' pleadings, or the most recent motion filed in the case.

In the example I started with, the problem was not so much that the attorneys were trying to cut corners, or treat the briefs as unimportant. And after reading both briefs I got a clear picture that the plaintiff had a fairly airtight case but was going to have difficulty collecting a judgment. The problem was that the plaintiff's brief never really addressed the issue that was going to be critical in determining whether the case could be settled or not.

So let me suggest a couple of ways in which parties might make their briefs more effective, and why it might be worthwhile to put a bit more thought into this aspect of the mediation. First, consider writing a brief that is going to be persuasive to the other side. Even if you think that there is no point trying to influence the mediator into a more favorable view of your side of the case before you show up in his office, it is usually worthwhile to try to influence the opposition. Isn't that the whole purpose of a negotiation? Look at the mediation brief as another opportunity to affect the other side's thinking. Make them aware of facts and arguments that should make them reluctant to proceed to trial. Show them why settlement on the terms your side is looking for is in their interest.

If you are writing with the other side in mind as the audience, you should probably plan to exchange briefs with the other side. Speaking for myself, I wonder why many lawyers prefer to file briefs for the mediator's eyes only. When you do that, you are putting the mediator in the difficult position of needing to ask permission to share any information in the brief with the other side. Most of the time, the information in your brief does not come as news to the other side anyway. And if the information is not shared, one has to wonder what use it is in a negotiation. I understand when parties do not want to share their bottom line figures with the other side at the outset of a mediation. But they probably shouldn't divulge that information to the mediator either. What parties going to mediation should be trying to do is affecting the thinking of their adversary. Try writing a brief with that purpose in mind. Think about how the other side views the case, and try to write something that addresses those concerns.

Second, try to include information in the brief that directly addresses the considerations most applicable to settlement, as opposed to the issues that a judge might need to understand prior to trial.  It is of of course of some value for the mediator to know what the case is about, and the contentions of each side. But a mere recitation of the various legal theories being advanced by each side, and their respective damages calculations, might only be the first step in the analysis. What is of more benefit to the mediator, and to the parties, is understanding what obstacles have prevented settlement of the dispute. If there is a legal issue that the parties disagree about, identify that issue. If there is a factual dispute, identify that. If the lawyers simply have different views about the range of possible outcomes at trial, that is helpful to know. If the main problem is the defendants' ability to pay, both sides' briefs should address that problem. It is also useful for the mediator to understand the nature of the relationship between the parties. Were they friends at one time? Do they have any future prospects of doing business together? Did some other problems arise between the parties, or did someone else add an element that has contributed to the conflict?

If parties take the time to answer these kinds of questions in their briefs, they will not only put the mediator a couple of steps ahead in being able to conduct an effective mediation, they will also help move their own thinking, and that of their adversary, closer to a possible resolution.

(photo from the Eyeglass Shop)


Anonymous said...

Hi Joe,

Your comments as usual are totally on point. I try to ask counsel that if they are going to take a "position" in their mediation briefs, let them stylize it with a "position" for resolution.


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