Mediation Tips - Briefs & Details
Mediation Briefs 101
Here is the outline/checklist for the all-purpose, exchangeable Mediation Brief. With luck, it can be written, edited and assembled in about 4-6 hours.
- Introduction: 200+/- words describing the type of case and a short version of the facts and damages.
- Coming Events: Procedural status of case: trial date, pending motions (both discovery and dispositive) and scheduled discovery.
- Facts/Timeline: Tell the lawsuit’s story, anchored to documents and/or an event timeline.
- Exhibits: Attach case critical documents including contracts, insurance policies, timelines, damage summaries and other important items. Highlight key passages for easy location and reading.
- Law: Unless the case turns on fine legal points, go light on the legal analysis. You, your opponent and the mediator probably know the law. Hit the high spots and any controlling regulations, statutes or cases.
- Damage Summary: Outline damages in table form, preferably in less than a page.
- Settlement Status: How did we get to this mediation? Court ordered or encouraged? Counsel/Parties agreement? Critical upcoming event? Set out settlement negotiations to date. If you are the plaintiff and there has been no demand, include one.
Mediation Briefs 101A
Once the mediation brief is written, the following steps upgrade its persuasive quality.
- Edit the brief: Editing makes the brief more readable and conveys your message in clear and concise language.
- Proofread/Spell-check: Misspelling and grammar lapses detract from the brief’s quality and presentation.
- File the brief on time: The mediator will have time to read and outline the brief and be ready to hit the ground running.
- Exchange Briefs: When the other side has your brief, they know your positions on the facts and issues. Differences of fact, law and damages can be addressed early and the mediation gets off to a productive start.
Do the Math
Before every mediation or arbitration check the math i.e. your damage calculations. The math includes plaintiff/defendant versions of:
- Contract claims over time and mitigation.
- Comparative negligence and economic/non-economic loss allocations.
- Interest and attorney fees.
- Present value projections. (Request a compact Present Value Calculator, Excel format, by Reply Email.)
Accurate damage figures make for a polished brief, improved client-counsel communication and more effective advocacy.
Exchange Briefs with the Other Side
It saves time, making the mediation more efficient by focusing the parties and the mediator on the issues. The mediator does not have to guess at what’s confidential and what’s not. If you have confidential information to share with the mediator, let the process unfold a bit, so trust and confidence can develop. Then your confidential information will not be compromised and can be used to your greatest benefit.
Send Evaluation Material Early
No case is settled until the paying party, usually the defendant, receives, reviews and evaluates the primary data supporting the plaintiff’s claim. In business disputes, it’s the schedule of orders unfilled and the cost of cover. In construction cases, it’s the list of change order requests and supporting data. In personal injury, it’s the medical bills and loss of earnings documentation. Even if the material has been produced in discovery, update it and summarize it in a clean, clear and concise form.
In order to evaluate plaintiff’s claim and secure authority, especially in large cases, there is often a formal review process, which includes staff evaluations, committee review and final authority from management. Delivering evaluation material with plenty of lead time facilitates defendant’s evaluation process and results in a more productive mediation.
Be Prepared: Details Count
Any mediation or arbitration goes better when we don’t have to worry about the details. When you or your staff completes the following checklist, your ADR process is off to a good start.
- Confirm the day, date and time with: the ADR provider, your client and the other side.
- Put your brief and exhibits where you can’t miss them when you leave the office.
- Be early. This allows time to catch your breath, meet the client or witnesses and generally get the “lay of the land.”
Dealing with Project Completion Delay
When you delay completing a project that you know should be done, psychologically, you are engaged in a negotiation with yourself. Think two selves; your "should" self that looks out for your long- term interests and your "want" self that is all about short-term gratification. This self negotiation depletes your willpower to stay on task.
Here are five suggestions to give your "should" self a leg up in the negotiations:
- Eat Something. Low blood sugar contributes to willpower depletion.
- Break the project into manageable chunks. A large task is overwhelming, but small pieces get done and give you a sense of accomplishment.
- Make the work fun. Treat yourself to Starbucks or some other small, personal reward after you finish each section.
- Eliminate distractions. Turn off the telephone, put email on hold and close your door. Even one hour of undistracted work significantly moves a project forward.
- Set firm deadlines. This applies to the entire project and its interim steps. Your "want" self responds better to firm, short term deadlines.
For more on this subject, see the fascinating book, Willpower by Roy Baumeister. This book reviews the scientific literature on willpower with great chapters on child raising, dieting and what actually works to develop and sustain willpower.
Exhibits – What Mediators Read
To be sure your mediator reads none of your brief's exhibits; stuff them in a five-inch ring binder without a table of contents or exhibit tabs. Better yet, email hundreds of pages of PDF exhibits.
Instead, follow these 10 tips and make it easy for the mediator to find and read your exhibits.
- Deliver your brief and exhibits to the mediator at least two days before the mediation.
- Limit your exhibits to what fits comfortably in a one-inch "D" ring binder. "D" rings have flat sides that keep the pages flat.
- Punch the exhibits with oversized holes. The pages are easier to turn.
- List the exhibits in a table of contents keyed to the tabs separating the exhibits.
- Assemble the exhibit book in the following order:
- Your brief with a sheet of clear plastic on top;
- Table of contents;
- Exhibits with separating tabs and a piece of stiff paper or plastic at the end to protect the final pages;
- Insert a copy of brief’s caption page into the pocket on the front of the binder.
- Use exhibit tab labels to describe the exhibits’ contents. Click the link below for illustrative divider options.
- In your brief, link quotes to a specific page, e.g., "Exhibit 1, The Contract, page 3." On the exhibit, highlight the quote in yellow. Do not send the mediator on a "treasure hunt.”
- Voluminous numerical based documents such as purchase orders, estimates, invoices/bills and payments/checks can and should be summarized on spreadsheets. Otherwise, they take up space and have no impact.
- Extract important pages/sections from long contracts or insurance policies. Bring the entire document to the mediation.
- Check all exhibits for readability. Make sure the copies are clear. Use color photographs, not photocopies.
High-quality exhibit books demonstrate professionalism, attention to detail and respect for the process and the mediator.
Note: Most of these tips work well for arbitrations. The difference is that in arbitrations, you must attach the entire document and the back up for spreadsheets. The best way to present arbitration exhibits is with a "hot docs" 1-inch binder for the important and frequently referred to documents with the balance in 3 "D" ring binders.
- Set a 10 page limit. The French mathematician, Blaise Pascal said it best, "If I had more time, I would have written a shorter letter." A page limit helps focus thought and content for clarity and impact.
- Omit the law. Exposition of the law takes up space and adds little. If your mediator does not know the subject matter law, you probably have the wrong mediator.
- Edit the brief. Editing enhances the brief's readability, clarity and persuasiveness. Take out the literary flab by deleting redundant text and arguments. Check for fact errors, tense matches, grammar, syntax, punctuation and apostrophe placement. Avoid common word misuse, e.g., affect (to change) versus effect (result). Eliminate superfluous words such as “just”, “since”, “clearly” and “indeed”. Identify holes in the narrative and poor flow by reading the brief out loud. Ask someone else to read the brief for form, style and content.
- Avoid the passive voice. The passive voice tends to be vague, awkward and wordy. In the passive voice the sentence's subject is not taking action. The preposition “by” directs you to sentences that need rewriting. Passive voice: Smith was fired by Jones. Active voice: Jones fired Smith.
- Proofread. Spell checking is not proofreading. Spell check will not save you from a correctly spelled word used improperly. Here are some examples from recent briefs: typed "now", intended "won"; typed "property”, intended "properly"; typed "pink", intended "pick". These errors distract the reader and undermine credibility. Proofread by looking at and reading each word in context. Know yourself. Are you a better proofreader on the computer screen or on the printed page? As with editing, use a second pair of eyes.
- Limit exhibits. Exhibits bulk up briefs and are seldom read. Attach only key exhibits. See October 2014 ADR Tip, Exhibits – What Mediators Read
- Deliver briefs promptly. Send your brief to the mediator two to five days before the mediation. This allows time for reading and telephone calls.
Done Is Better Than Perfect
“Done is better than perfect,” is the motto of the Facebook tech culture. It does not mean producing poor or mediocre work. It means that it is more important to get good product out the door, than it is to make the product perfect. This maxim applies to lawyers.
1. Finishing product accesses the feedback loop. Once the first draft of the brief is done, partners, colleagues and clients can give feedback for its improvement. NB: the ultimate feedback is, did the brief persuade judges, arbitrators or mediators?
2. You can't bill for perfect. Perfect takes too long and clients won’t pay for it. Clients want a motion that is granted, not a law review article. You can’t bill three days’ time for a one-day project.
3. Perfect violates the Pareto Principle. The Pareto Principle, aka the 80-20 rule, states that 80% of the useful work is done in 20% of the time.
4. Perfect induces anxiety. Because perfect is a theoretical and subjective state, it is unattainable. Worrying about making a project perfect causes anxiety, heartburn and undermines self-confidence.
Voltaire may have said it best: "Perfect is the enemy of good."
For more on this subject check out The Done Manifesto.
8 Tips for Briefer Briefs
In the short attention span, information overload age, concise, well-focused briefs are most effective and read top to bottom. Here are 8 tips for writing a tight, persuasive brief.
1. Set a goal. 10 double-space pages.
2. List cast of characters. Identify parties, by name, company and/or familial relationship, litigation status, i.e., plaintiff, defendant etc., and counsel. 1 or 2 pages.
3. Introduction: Who is suing whom for what with a condensed factual grounding and key issues. 1 page.
4. Facts and Argument: Set out in time order. For detail, use quotes or direct reference to exhibits. 5 to 6 pages.
5. Omit or condense law: If you need long expositions of the law, you have the wrong mediator.
6. Damage Chart: Show the damages in table form with columns totaled. 1 page.
7. Settlement Status: Detail the prior negotiations, when they occurred and key deal points. 1 page.
8. Omit conclusion: Save the trees.