ByJAN FRANKEL SCHAU // Panel Neutral with ADR Services
Many attorneys are reticent about filing a Mediation brief for fear that confidential communications meant only for the mediator will be accidentally disclosed to the opposing party. Fear not! Rapid legal can make sure that your brief is delivered into the hands of the trusted mediator herself within her stated filing schedule and you can simply bring a different version for the opposing party on the day of the mediation.
The mediator will want a basic synopsis of the facts, the key legal issues still in dispute and a brief history of settlement negotiations up until that date. Most mediators don’t object to your brief being sent via email, but generally when you want the mediator to have the advantage of reviewing the exhibits and critical evidence which will make or break your case, you need a delivery service who you can trust to get it there. And you want to make sure that the weight of the evidence is in the mediator’s hands at least 1 week before, because busy mediators won’t have time to review your documents unless they can take them home over a weekend. This means keeping the information and writing crisp and direct, and highlighting the key evidence and documents wherever possible. Don’t simply send them whole deposition transcripts without directing them to the crucial testimony within.
The brief you prepare for opposing counsel can be more of a legal argument as to why your claims or defenses are likely to influence how the case can ultimately be resolved. In that one, you can (and should) always close with a line about “looking forward to resolving the matter” at the mediation—no matter how strident your arguments are before then. Opening the door to negotiation before the mediation begins is the best way to let air in so that you are most likely positioned to avail yourself and your client of this golden window of opportunity!
For more insight into what the contents of the brief should be in a particular scenario, contact your mediator or our guest blogger, Jan Frankel Schau, at JFSchau@adrservices.org. You can also follow Jan Schau’s blog at: www.schaumediation.com/blog.