TIPS ON MEDIATION ADVOCACY: A MEDIATOR’S NOTEBOOK: CHAPTER 3: OPPORTUNITY LOST: THE MEDIATION BRIEF

Introduction

There is a vast literature on how to write a Factum, be it for a motion, trial, or appeal. The transcendental principles of Factum-writing are clarity, brevity, and persuasion.

By contrast, there is a paucity of literature on how to write a good Mediation Brief. In my experience, the contents of most Briefs (at least the ones that I have read) appear to have been hurriedly written with no insight beyond the four corners of the pleadings. ?Often, I am surprised to learn for the first time in the mediation session itself that there are expert reports or opinions that there are will-say statements of witnesses; that Rule 49 offers, or informal offers have been exchanged, or that new evidence has come to light after the completion of the discoveries.

Good mediators spend a good deal of time before the mediation session reading the Briefs. Often, the mediator will rely on the Briefs to develop an “action plan” for settlement before the mediation session begins. Like a judge who reads the Trial Record before the evidence is called at trial, a mediator may form an impression of what a negotiated settlement could look like. That process is wholly undermined if the Brief is uninformative and its contents wanting.

The Brief, like the Factum, should be seen by lawyers as an important tool of advocacy, yet the opportunity to use it for that purpose is typically and needlessly squandered.?

What explains this lack of attention to the contents of the Brief? ?

Perhaps, one reason might be the misplaced concern of revealing too much, too early to the mediator and the opposite side.? This is especially so where lawyers employ the classical model of bargaining: using the binary of offer/counteroffer to find the “fair market value “of rights based on a predictive model of trial outcomes [see my critique of this approach in Chapter 2].

Another reason might be based on the view that, unlike an Appeal, the mediation process is elastic, more like a poker game than an exercise in a forensic analysis of risk aversion. [Readers of my earlier Chapters on Mediation Advocacy will recall my view that mediation should be reimagined as the buying and selling rights based on principles of loss aversion or avoidance not some predictive model of trial outcome]

And finally, another reason may be that it is best to keep the mediator in the dark, and only in the mediation session reveal some “shock and awe” revelation that the mediator can use to bludgeon the other side into a favorable settlement position.

How to Write the Brief

First, and most importantly, do NOT write a brief without a bargaining strategy that has been approved by the client. Certain kinds of disputes and clients (notably insurers) will only bargain using the classical model of negotiation.? ?Other types of disputes and clients may be open to different negotiation styles. The Brief should mirror how you intend to conduct the negotiations.

Second, regardless of the strategy, the Brief should include a blend of the “justice narrative” and the “settlement narrative”.?

For the former, the Brief should set out:

·????? A chronology of events giving rise to the dispute.

·????? A summary of good facts/bad facts in the case;

·????? A summary of the legal principles at play;

·????? Excerpts of discovery transcripts.

·????? Copies of expert reports or a summary of the anticipated expert opinion.

·????? Copies of Will-Say statements.

·????? Identify any “gateway” issues: can these be arbitrated quickly to make the trial more efficient?

For the latter:

·????? Provide copies of Rule 49 offers or informal offers exchanged.

·????? Express your opinion or assessment of the obstacles to a settlement:?

i)?????????????? credibility issues.

ii)???????????? differing expert opinions as to the origin and cause of a loss or damage quantification.

iii)?????????? The need to secure an expert opinion;

iv)??????????? solvency and the ability to pay costs or a judgment after a trial.

v)???????????? The level of the client’s emotional investment in the dispute;

vi)??????????? the client’s ability and resources to take the matter to trial;

vii)????????? is there insurance to respond to the claim;

viii)??????? the amount of sunk costs to date;

ix)??????????? reputational interests at stake.

x)???????????? need for confidentiality.

xi)??????????? the advisability of a Pierrenger or Mary Carter Agreement in complex multi-party litigation.

xii)????????? public interest concerns.

xiii)??????? the need for an apology.

xiv)???????? remedies that may go beyond what a trial judge might award.

Third, do not shy away from putting in the Brief proposals for settlement, or the principles that should guide a negotiated settlement. ?Be creative.

Conclusion

The role of the trial lawyer is to “win” the clash of rights at trial or appeal. The role of the barrister in mediation is to work collaboratively with the mediator to secure a settlement that efficiently insures against the risk of an adverse trial result. At the core of each is advocacy and persuasion. Use the Brief to accomplish those ends.