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How an Effective Mediation Brief Can Give You the Upper Hand

Mediation is an alternative to litigation for people and businesses involved in disputes, saving the parties time, money and effort. Mediation sessions are led and managed by a neutral third party called the mediator. An important part of the process is the mediation brief that each side submits to the mediator. A well-crafted mediation brief lays out the underlying dispute and the party’s position in a way that facilitates the mediator’s ability to promote a positive settlement in their behalf.

Mediation briefs differ from briefs submitted in litigation, which seek to convince a judge that a party should prevail as a matter of law. A mediation brief does include a summary of the underlying facts and the applicable law. However, an effective mediation brief also focuses on the reasons why the case has not been resolved informally. A thorough understanding of the impasse can be more important than an analysis each party’s claims and defenses.

While California law provides guidance on mediation statement requirements, even highly skilled attorneys sometimes miss the mark in drafting these briefs. Many lawyers have a strong litigation mindset — that is, they stress the legal theories on why their side should and would prevail at trial. However, the whole point of mediation is to develop a consensus. An experienced mediator is more concerned about the obstacles to settlement than about every detail that might come out in court.

An effective mediation brief helps the mediator do his or her job efficiently, which can factor heavily in the outcome. Perhaps the most influential part of the brief is a statement of the perceived strengths and weaknesses of each side’s position — including those of the party submitting the brief. Attempting to hide or downplay an important element of the case is counterproductive. Still another key part of a brief is a “risk profile,” which identifies the risks that would be faced if mediation is unsuccessful. This includes the potential litigation costs as well as any judgment that one side might have to pay the other. The brief should also contain a synopsis of any prior settlement efforts and an explanation of why these efforts failed. These disclosures and details provide the mediator with the information needed to find common ground, often to the benefit of the party who is seen to be most helpful.

Based in Stockton, Quinn & Kronlund LLP is one of Northern California’s leading alternative dispute resolution law firms. If you or your company is involved in a dispute, mediation might be the best route to settling the matter. Our firm takes great pride in resolving disputes quickly and efficiently. We serve as neutral mediators as well as mediation attorneys. Feel free to contact us or call 209-943-3950 for an initial consultation.