Good written and oral advocacy skills help the mediation process to work successfully. Having skillful lawyers involved in the mediation process helps mediators get cases resolved. Lay clients involved in mediation can also benefit from these skills. I am going to explain and discuss skills in a series of weekly Posts which I hope you will read and find helpful.
Writing a persuasive mediation brief
To use the mediation process effectively, each side should present a persuasive brief outlining their case to the other party and to the mediator. The mediation will not be successful unless both parties understand the position of the other. Accordingly, the first and critical advocacy skill required of a party representative is the ability to write a persuasive brief.
A persuasive brief gives the other side an advance preview of the case with the time to digest and evaluate their opponent’s position. Some argue that the mediation brief should be confidential, limited only to the mediator. However, save in special circumstances, the brief should be ‘directed’ to both the mediator and the other side because it is the first and most powerful weapon a party can use to persuade the other side of the merit of their case.
Faced with a persuasive brief, a Plaintiff may reduce his or her expectations or a Defendant may increase its evaluation. Such adjustments are best done in advance of the mediation to give the opposing side ample opportunity to re-evaluate its case. Once at the mediation, there is usually less time to make radical changes in evaluation and position.
