A good mediation brief should be a reasoned statement of the party’s case, backed up by reference to facts, witnesses, documents or any other forms of evidence as well as, where appropriate, a discussion of applicable law.
Writing a good mediation brief is an advocacy skill. Its length and complexity depends on the case and the issues. Its format will vary with the skill and creativity of the writer. A brief may include exhibits and can be combined with or even consist of a Powerpoint or other audio-visual presentation.
The contents of a typical brief, set out by separate sections, are as follows:
• A short summary or overview of the case
• An introduction of the parties and their representatives
• A statement of material facts
• A discussion of the legal issues
• A discussion of what each party seeks
• A discussion of your settlement proposal and any counter proposal
If there are any obvious legal issues bearing on the case, they should be discussed sufficiently to persuade the mediator and the other side of the merit of the position advocated.
If there are helpful expert reports, they should be disclosed or at least used in a way that communicates the anticipated testimony. Helpful exhibits should be identified and attached.
Ordinarily, the most powerful tool of persuasion is the evidence in the case. Sometimes, a photograph, specific documents or items of evidence are the key to persuasion. A good advocate knows when and how to use these in the mediation brief.
A good mediation brief should address the value of the case and settlement. It should state what offers have been made and what special obstacles there are to implementing a settlement. These steps will make the mediation productive.
Finally, the mediation brief should, consistent with the information suggested above, be concise. Mediators are not persuaded by unnecessarily long written presentations. Do not dump a pile of documents on the mediator as this will not impress the mediator. Keep it succinct!