Developing Your Powerful Mediation Brief
| Publication year | 2021 |
| Author | Justin O'Connell, CFLS |
Justin O'Connell, CFLS
Justin M. O'Connell is a partner at Cavassa O'Connell, located in Monterey, California, where his practice includes family law and civil litigation. Mr. O'Connell is a Certified Family Law Specialist, served as a Commissioner on the California State Bar Family Law Advisory Commission from 2012 to 2015, and is currently the Legislation Chair of the California Lawyers Association Family Law Executive Committee (FLEXCOM). He has been the professor of Property Law at the Monterey College of Law since 2007, and a member of the Alternative Dispute Resolution Executive Committee for the Monterey County Superior Court since 2013.
Attorneys train and prepare for hearings and trials but, all too often, the same level of work, attention, and skill are not applied to prepare for mediations. Some of the preparation for mediation is working with the client to develop a plan and settlement objectives. Some of the preparation is for what will occur during mediation. But a significant amount of preparation should center on the mediation brief (sometimes called a mediation statement). The brief is where an attorney explains the client's position and why the client should obtain its goals. The brief can make a lasting, impactful impression on the attorney's client as well as on the opposing counsel and the opposing party. Yet, many attorneys overlook the importance of developing a powerful mediation brief.
The composition of mediation briefs sometimes appears as routine, last minute, canned outlines filled with acrimonious tone but sparse on meaningful discussion. Such briefs are often accompanied by exhibits galore that appear to be a replacement for the attorney work product, appearing as the equivalent of stating, "See attached—figure it out." However, drafting mediation briefs with due skill and thought is critical. The mediation brief usually provides the only opportunity to indirectly address the opposing party. The mediation brief can persuade a shift in settlement position, whereas a trial brief is designed to persuade an absolute outcome.
Attorneys spend countless hours sharpening their skills to win a request for order, write a trial brief or make a closing argument. But most cases settle before trial, so having the skill to obtain a favorable settlement should be a goal of any attorney. The mediation brief should reflect the culmination of that skill and not be a halfhearted attempt to please the mediator by just submitting paperwork, and please the client by denigrating the other opposing party. Remember that it is likely your client's goal to make the mediation session the last day of the case, so your mediation brief should reflect the importance of achieving that goal. Treat mediation with the importance it deserves and think about some of the following tips when preparing your brief.
A mediation brief might not be so brief. Attorneys sometimes feel compelled to write a volume of work to cover the numerous issues and facts. Mediation briefs, like trial briefs, come in many different lengths. Some are short and some are long. Some have exhibits and some do not. Some are summary in nature, while some go into exhaustive detail including case analysis and brief footnotes. Before writing your brief, consider the objectives, your audience, and how effective you think your work product will be to meet those objectives and speak to your audience.
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It is no surprise that mediators prefer shorter, concise mediation briefs without numerous exhibits. While that preference might reflect a desire not to be burdened with too much, it might also reflect a mediator's approach to the process. The more evaluative the mediator's approach, the more they might want details and evidentiary support, while the more facilitative mediator might be comfortable developing facts during the mediation session. When considering the length of your brief, consider what approach style—evaluative vs. facilitative—will likely work better to reach a settlement, and what your mediator's approach tends to be. Lengthier briefing on topics that need an evaluative approach might be more appropriate (e.g., where the law is on your side), and shorter briefing of topics might be more appropriate for a facilitative approach (e.g., where the law is not clear and there is room to negotiate).
A twelve-page brief can be just as effective and informative as twenty-five page brief. The number of pages is not what is most important, but rather the attorney's effectiveness in communicating within those pages. You should strive to develop mediation briefing as a skill, and not something you...
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