The Closer

A Mediation Newsletter May 2014

The Pre-Mediation Brief
by James Rainwater

"Forewarned is forearmed," or so the saying goes. As an occasional pro bono mediator for a county dispute resolution center, I often tell the parties that I just parachuted into the mediation, that I know nothing of their case, and that I need to be told the facts and positions of the matter. However, too often in non-pro bono matters, the mediator is told very little about the case pending mediation. For this reason, I recommend that attorneys prepare and send a pre-mediation brief to their mediator.

Now, I am not talking about a first year moot court competition brief; yet, I must stress the benefit to the mediator of possessing some of the rudimentary elements of the case. Your client is paying good money for the mediation conference, and the most should be gained from it. Mediation requires a "good faith effort," and I believe such preparation goes a long way in meeting that obligation.

While there is no official format for the confidential pre-mediation brief, I suggest that it be succinct and factual, no more than five pages in length, and include supporting documents. As only the mediator will have access to this brief, this is the time to be frank with the facts and the likelihood of success and failure. Here is a very cursory approach to drafting the pre-mediation brief.

To start, list the parties and the facts of the matter. Describe the points of contention and any significant court rulings. Inform the mediator of your client's strengths and weaknesses, temperament, and concerns. Explain any settlement discussions that have occurred and any offers received or proposed between the parties.

Next, provide a feasible judgment range or scenario that would result should your client prevail at trial and one should the client lose at trial. From your own experience, what is the likelihood of success for this type of matter? Remember: At trial, someone has to win, and someone has to lose. Lastly, give a settlement range or scenario that the client would be willing to accept. As the mediation process ultimately seeks to avoid a court battle, the pre-mediation brief is your first best shot at steadying the foundation for a successful mediation and an agreed resolution.

Rainwater Law