Mediation Tips and Arbitration Bits
| Publication year | 2020 |
| Author | By Alan R. Berkowitz |
By Alan R. Berkowitz
Alan R. Berkowitz is a mediator with Judicate West, specializing in individual and class action cases. He has resolved hundreds of cases involving all types of employment matters, including wage & hour class actions and PAGA claims, many of which resulted in seven-to-eight-figure settlements. Before retiring from the practice of law to become a full-time mediator, he was a partner with Bingham McCutchen, managing partner with Schachter Kristoff Orenstein and Berkowitz, and Regional Attorney at the NLRB, Region 32. He has tried over 50 cases in state and federal courts and administrative agencies on behalf of both defendants and plaintiffs.
To exchange mediation briefs or not to exchange—unfortunately, that is a recurring question. Reframing the question makes the answer obvious—who are you trying to persuade by your mediation brief? The mediator? Sure, you want the mediator to view the case as strong if you represent the plaintiff, or weak if you represent the defense. But more importantly, you want to persuade the other side, and the mediation brief is your best opportunity to do so.
There are a number of reasons parties decline to share briefs, most of which are premised on the tenuous notion that the non-exchanging party is simply giving away information not presently available to the opposition. Yes, that is the point! Use the brief to tell your opponent something s/he doesn't know. If the information is truly helpful, use it to demonstrate the strength of your case. You and your client have invested a lot of time and money writing a brief and attending the mediation, why hold back and reduce your chances for settlement? A party may not have a given piece of information at the time of the mediation, but modern discovery makes it highly likely that the information will come to light at some point.
Many cases are brought to mediation very early in litigation and sometimes pre-complaint. In these circumstances both parties can particularly benefit from an exchange of briefs. Plaintiffs' counsel generally accept cases based on what they are told by the client based on the limited information available pre-discovery. As most lawyers painfully learn over time, clients do not, or cannot, always paint a full or accurate picture of their claims. Defense counsel should take the opportunity in their mediation briefs to correct any misunderstandings plaintiff, and more importantly plaintiff's counsel, may have of the bases of their claims. The brief allows the defendant to provide a more complete record and explanation for the action taken. Hopefully, the brief will then inform plaintiff's settlement position.
And even defendants, who usually have the benefit of more information at the early stages of litigation, have something to gain by fully understanding plaintiff's position. Plaintiffs should use their mediation briefs to demonstrate the strength of their cases, reveal evidence and witnesses of which the defense may be unaware, and stress the potential exposure defendant may face absent settlement. Commonly, defendants' counsel come to mediation after having done a liability and damages analysis and having obtained a predetermined settlement range approved by the client. It is difficult to move them from their settlement positions unless they can be persuaded by something they have...
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