August 1, 2014
The 1 Way to Maximize Success in Mediation
by Teddy Snyder
Preparing a brief, even an informal one, gives you a head start with the mediator without tipping your hand to the other side.
The goal in mediation is to define issues and resolve them. You can get a head start by alerting your mediator to the issues and suggesting why those issues tilt in your favor.
Lack of a brief unnecessarily lengthens the mediation, and your mediator is probably being paid according to how much time is spent in mediation. Effective resource management dictates you don’t want the mediator to have to spend the first hour—or two or three—digging out the issues.
Mediation can be an exhausting process. People get cantankerous, which makes negotiation more difficult. Short-cutting the mediation by defining issues in advance can keep participants at their best.
The brief need not be formal. A letter may be adequate. If you are in doubt about how formal your brief must be, contact the mediator and ask.
A party who does not brief the issues may be allowing the other side to define the discourse. What if your opponent briefs different issues than you do? No problem. Mediation is the place to get all the issues on the table. Preparing a brief helps you hone your arguments. The brief is a guide to make sure no issue is overlooked. Send your brief to the mediator far enough ahead of the mediation so the mediator has adequate time to review it.
Did you know the mediation brief you send the mediator is confidential? You decide whether to share it with the opposing party. Information disclosed to the mediator during mediation is not discoverable. The mediator cannot be subpoenaed. This allows you to control when to reveal your “smoking gun”—maybe not until trial.
Some parties prepare two briefs: one for the opposing party and a confidential one for the mediator. More commonly, a party prepares just one, but may decide to waive confidentiality of the brief during mediation.