The importance of mediation briefs

In my mediation practice, I see all manner of mediation briefs. Some have been prepared such that it is evident that the author has given a lot of thought as to how to present the client’s case; some are more just a recitation of facts and law with a position regarding settlement tacked on at the end; the rest fall somewhere in between these two extremes.

A mediation brief is each party’s primary tool to pitch their view of a settlement range to both the mediator and opposing counsel. Cases settle when the parties agree on a number, and numbers are driven by facts, law, and the credible threat of a party taking a case to trial and getting a significant verdict (or the credible threat of a party taking the case to trial and defending it). A brief that demonstrates that the lawyers have prepared their case such that they will be able to present it to a jury in a credible and persuasive way will often do much to move settlement considerations into a higher, or lower range. While mediation presents a real opportunity to settle your case, it is still incumbent on the parties to help the mediator maximize this opportunity. One of the keys to maximizing the opportunity is for counsel to treat the mediation brief as a key part of the entire mediation effort.

The strongest briefs I have read have been as much art as “science.” Think of the brief as a presentation of your case to someone who will be receiving it as a matter of first impression (in much the same way that a jury will). You have been living with the case often for a year or more before it gets to the mediator. Step back. Consider and present the current state of play, eliminate “fluff” that may have become less relevant over time. Let go of, or at least de-emphasize, arguments that you might have become overly-invested in but that have perhaps weakened as your case progressed. Try to avoid basing your story on likely inadmissible information or innuendo. If there is evidence the admission of which you anticipate will be hotly contested by Motion(s) in Limine, it will be beneficial if you have researched and are able to articulately present the arguments in support of your side’s position. Treat your mediation brief as a something you might present at trial. Trial is the ultimate venue for cases where settlement can’t be agreed upon, so package your case so that the other side can see what they will actually be up against.

Things to consider when crafting your mediation brief

Length: It is important to resist a “kitchen sink” approach to the brief. Help the mediator by including an opening paragraph succinctly framing the important issues before detailing your liability, damages and settlement positions. Ideally, the brief should not exceed 8-10 pages (excluding exhibits). Think of the brief as a practice run of your opening statement and give some real thought as to how to communicate your points clearly and convincingly.

Timing: Personally, I like to have time to read the briefs, then conduct pre-mediation calls with both sides to flesh out important details in advance, rather than eat into our session time to do this. Receiving briefs 5 days before the mediation allows time to do this. Receiving them the night before does not. Additionally, if insurance is involved and you intend to serve your brief on insured party(s) (another issue discussed below) it is important that you give the insurer the time to consider your claims and arguments in advance of the mediation.

Tell your client’s story:

Mediation is the perfect opportunity to hone how to present your client’s case in a winning way. Let the other side, and the mediator, evaluate the case the way you intend to present it at trial. Let your brief sell your case as you intend to sell it to a jury, and not be just a cold recitation of facts and legal argument. Tell the mediator and the other side what has been taken away from your client as a result of defendant’s malfeasance – or how and why plaintiffs claims for damages are exaggerated, unreasonable or otherwise untenable. Give examples – don’t just make conclusory unsupported statements.

Address the case against your client:

The stronger briefs I have seen address head on each/all bad facts alleged by the other side, and do not just gloss over them or attempt to obfuscate them. Plaintiffs should address defendants’ main defenses and explain why they are not going to benefit defendant at trial. Defendants should lay out what plaintiff must prove to obtain a verdict and specifically detail the elements plaintiff will not be able to prevail on. Hopefully by the time you are going to mediation you know your opponent’s case, and you can spend as much time explaining why it won’t fly as to why your version of facts will. Your brief should reflect the very strongest arguments you have on every point being raised by the other side.

Likewise, if your case involves a complex subject matter, show that you will be able to simplify it and explain it to a jury. Does your case involve some instrumentality that will need to be explained by an expert? Think helicopter, chemical chlorination system, or something that improbably caught fire? Does your brief demonstrate that you, the lawyer, will be able to simplify the important concepts for the jury? If you have a case involving complex medical conditions or injuries, much better to list and explain each of them, than just list them and assume the jury (or mediator) will form the opinion you hope they do.

Your brief should support the economics of your settlement position:

Why is a case worth X? Or why is a case not worth X? Lay it out. Do the math. Plaintiffs, how are you going to explain the reasonableness of the big numbers you are demanding? Include details about any relevant liens – anticipate and address any arguments regarding the reasonableness of the underlying treatment and the consistency of the billing with market rates. If you can’t explain and contextualize all of this in mediation, your numbers may seem fanciful.

Defendants, ground your position in reason and come armed with your argument as to how your client’s version will prevail in preventing the verdict Plaintiff is asking for. Be aware of how you present when contesting plaintiff’s injuries – a jury will be.

Details of damage calculations are particularly important in employment cases. If, for example, you represent a terminated employee and are making a high damage demand, break the demand down in the brief. If there is a wage and hour component, do the math and include it in your brief. If there is an emotional distress component, support the demand with evidence. Don’t just rely on the threat of fee-shifting and/or the cost of protracted litigation – doing so may present to the mediator (and will almost certainly present to defense) as a nuisance value (cost of defense) case.

On the defense side, remember that not all defendants are viewed equally. There are some well-known biases that affect jurors and that can be considered in your presentation – for example, the difference in perception between a big corporate defendant and a mom-and-pop outfit. With a defendant who is a small business claiming financial hardship, come equipped to demonstrate that hardship - to make the claim without back up is inviting plaintiff’s counsel to disregard it (often to the detriment of both sides, ultimately). If representing a bigger corporate interest you might want to review your presentation with a view to softening the edges of anything that could be construed as arrogance or a lack of compassion and be prepared to present evidence of your client’s even-handedness in all aspects of its decision-making.

Exhibits:

Try not to submit a brief that requires the mediator to “mine” your case for information. This consumes time better spent on conducting negotiations between the parties. Highlight salient parts of medical records, reports, or key testimony – don’t just append reams of documents that bury or mask the significance of the point you are trying to make. Be selective and resist the temptation to append documents that may be redundant or that require convoluted explanation to underscore the point you are trying to make. Also, and importantly, make sure you append all the documents you need, rather than springing something on the mediator as an after-thought mid-session that he or she is then required to contemporaneously absorb. For example, it is important to address the existence of any medical liens, which if only disclosed late in the mediation process, can completely derail the trajectory of a promising settlement discussion. These liens should be broken down by provider, treatment, and amounts charged, paid and outstanding. It is also helpful to the mediator if some indication of how these liens may be capable of being reduced for settlement purposes is provided. Where the brief is being served on the other side, this is probably unrealistic (although remains useful information to convey to the mediator verbally as early as possible, perhaps during a pre-mediation call or at the start of the mediation itself).

Evidence:

Evidence is key to winning your case and key to getting the best results at mediation.

i) Yes, you may have evidence you want to save for trial (or until you have taken certain depositions), but much will be known to both sides of the case, but not to the mediator. In general, relevant evidence that is known to both sides should be communicated to the mediator.

ii) Even if you have evidence you want to save for trial, if it is the type of evidence that could substantially move the needle in the other room, you may want to share it with the mediator in confidence and discuss if there is a strategic way to use in the mediation, but without showing your full hand.

iii) Don’t base your settlement position on a house of cards - be realistic in your assessment of what evidence is likely to be allowed in and what may well be excluded by an MIL. Being unrealistic will just burn up mediation time – if there is important evidence that is border-line, include a substantive argument as to why you feel you will prevail on its inclusion so that the mediator can have the conversation in the other room without just getting shut down.

Experts:

In most cases, expert testimony will be persuasive. The more the issues in the case are outside the everyday experience of jurors, the more the jurors will rely on experts. By way of example, while most jurors may have been involved in a fender bender, relatively few will be able to relate to the effects of TBI or other catastrophic injury incurred during a major traffic accident. Because the jury will likely not have experienced these things, it is important that both sides have experts who can credibly defend their positions because these types of cases largely become a battle of experts. It is therefore strongly advisable, whether plaintiff or defendant, to identify disclosed experts (or just discuss generally what your experts will opine) in your brief and to explain how you anticipate them testifying at trial, and why their testimony will be convincing. If the mediation is taking place prior to disclosure of experts, the information regarding opinions and anticipated testimony can be discussed without identifying the expert.

Settlement Postures:

Often, parties have not engaged in meaningful or overt settlement discussions before mediation. “What ifs” have been exchanged, but no formal demands or offers have been made. It is important that the parties give the mediator meaningful descriptions of their settlement positions, and details of demands/offers actually extended or received, including the detail of any CCP §998 offers and/or policy limit demands. As most attorneys know, it is usually counter-productive to make a settlement demand, then when serving a mediation brief, include a demand twice that previously presented. Likewise, if defendant has made an offer to settle, it will be counter-productive to halve that offer in their brief. Of course, sometimes the parties’ positions will genuinely change based on discovery, but again, posturing takes time away from the process of real and productive negotiation in the mediation session.

Should my brief be confidential?

When dealing with confidential briefs, I will ask the parties what information I am at liberty to share with the other side. Very often, the answer comes back that I can share any detail contained in the brief (but, usually, not the brief itself). It is almost as if there is a knee-jerk reaction to maintaining confidentiality and that not serving the brief on the opposing party somehow maintains an advantage.

Generally, I believe it is much more efficient for the parties to exchange briefs several days in advance of the mediation. It enables them to focus on areas they may not have previously considered and to discuss them with their clients. This may result in either a harder or softer mediation position, but either way, probably one closer to what it will be immediately before trial.

If there is something the parties want to save for trial or impeachment, it is still productive to go ahead and serve a fulsome brief but omit evidence they want to withhold. If an opportunity presents during the session when the withholding party considers it worthwhile deploying some (or all) of the withheld evidence, they can discuss with the mediator how to do this effectively, while possibly preserving some aspects of it for later disclosure.

Furthermore, if the case involves insurance, the insurer will need the brief to help them determine how much authority they may choose to obtain to attempt to settle the case. Given the layers that typically must be exhausted for an insurer to make any kind of substantial change in its position on authority, not serving a brief (or serving it last-minute) almost ensures that there will be no time for your best case to be factored into their authority as they approach the mediation.

If you do not have enough evidence to meaningfully support your demand or defend your offer, consider that mediation may be premature. If you are unable to capitalize on the opportunity mediation presents to craft and fine tune your case and presentation, you may be simply wasting time and money, and handicapping future settlement efforts.

In Conclusion:

Mediation has cost – not just in terms of money, but also in terms of the psychological effect a failed mediation may have on your client. It is in the best interests of both parties to come to mediation prepared to present every facet of their case clearly, thoroughly and persuasively to the mediator and (typically through the mediator) to each other. By doing this, the mediation will always be of value – it will either help you to resolve your case during the mediation on the best possible terms for your client, or, if this cannot be achieved, it will at very least help you identify and address what about your presentation of your case is not yet sufficiently compelling to prevail at trial.