Curious Litigant asked in a prior question (below) “What makes a good mediation brief?” In typical overly-verbose Mike Young fashion, I gave some basic tips that will lead to a perfectly adequate brief in most cases, one that is short, to the point, and easy.
But the challenge is … as it always is … can you do better?
This is a question I ask myself all too frequently: With respect to all aspects of the mediation process, from mediator selection, to briefing, to caucuses, to negotiating, to settlement, can you do better?
I think the answer is YES. Understanding that the goal of mediation is to reach a “favorable” resolution — and for the client, this means a resolution that is not only more attractive and desirable than continued litigation, but the most attractive deal possible under the circumstances — I think there is a better way to approach brief writing in mediation that will better advance the goal.
Consider The Purpose Of The Brief
To rethink the mediation brief, you first need to consider its purpose. Why even draft a brief? Why not just call the mediator on the phone and tell him (or her) why your side is right, the other side is wrong, and how you’ll win at trial? It would be faster, plus you could answer questions. (Actually, you should do this before every mediation if the mediator himself doesn’t initiate a call first.)
In my view, the goal of the mediation brief is to help the mediator understand the dispute so he (or she) can be as effective as possible in assisting the parties explore settlement. The brief’s focus is not to convince the mediator that your side will win at trial, though that could be part of the message. Nor is it to uncover every legal argument possible, though some of that may be helpful. Nor is it to badmouth your opponent, as tempting as that might be. Instead, the focus should be on helping the mediator understand THE DISPUTE, which is different than the legal claims.
Lawyers tend to focus on the legal claims, which is not surprising considering they are representing their clients in a court of law and they spent all that time in law school learning the law…or at least where the law is stored (in my day, it was stored in books…). Lawyers need to be focused on the legal claims.
But more often than not, the clients are focused on the dispute. Something bad happened to them and they are using the legal process to try to make something right. Or someone is blaming them for something bad that happened. The parties are focused on the something bad, and the need for something good — they are focused on the injury and the remedy.
What are the mediators focused on? Resolution. We want to find that settlement that both sides will prefer to trudging further towards trial. Legal issues are useful. So are factual issues. So are true motivations, needs, desires, wishes.
The Cause Of The Impasse!
So back to briefs, what will really help the mediator? What can you share in a mediation brief that will help the mediator help you settle your case? Easy: Help the mediator understand the nature and cause of the impasse. Get past the impasse and you can resolve the lawsuit.
Which means you first need to figure out the cause of the impasse yourself.
This sounds simple, but it actually requires a little introspection, reflection, and investigation.
The cause of the impasse might be a misunderstanding of the legal issues (yours or theirs), or a misperception of the facts (again, your misperception or theirs), or it might be something else altogether. Understanding the cause of the impasse is the first step towards resolving the dispute.
Think of it this way. How do you stop a baby from crying? Well, that depends. What’s the cause of the tears? Is he hungry…or stinky? Once you figure out the cause of the tears, the solution is easy. (Unless you’re me, then the solution was the same no matter what: “Here you go, dear.”)
Let’s look at a real life example. In one recent case, an Armenian immigrant was suing a former employer for wrongful termination, claiming that he was terminated as a result of his ethnicity. The fact that this plaintiff was a mortgage broker and was laid off with scores of other brokers during the depths of the banking crisis, and hadn’t closed a loan in the 11 months he had been with this company did not seem to register with the plaintiff. The fact that the plaintiff had brought his son into the company as an assistant, and the plaintiff was fired in front of his son DID register with the plaintiff, as did the fact that this immigrant had risen through the ranks to become a successful businessman and an important community figure (at least in his own mind).
Why does this case exist, and why hasn’t it settled yet (i.e., what is the cause of the impasse)? There could be any number of factors driving this dispute. Figuring out the actual drivers is your first step in approaching mediation, and will guide your mediator selection and brief drafting.
For instance, the driver of a dispute (the cause of the impasse) could be:
— Financial (“Now that I’m unemployed, I have no money and no health insurance. I have nothing else to do.” Or “The company is broke, and couldn’t pay what the plaintiff is asking even if it wanted to”).
— Emotional (“I hate that guy and am not paying him a penny”).
— Attorney Chest Pumping (“I’m better than my opposing counsel…and I’m going to prove it”).
— Lack of attention by stakeholders (“the adjuster with authority is on vacation…again”).
— Business realities (“my cash flow is seasonal–and this ain’t the season”).
— Informational (“they claim they have a witness to the alleged discrimination, but we don’t know who it is”).
— Legal (“their theory of damages is, respectfully, hogwash. The plaintiff got a new job at a higher salary the day after his position was terminated”).
— You or your firm (“I need trial experience.” Or “I’ve been too busy”).
— Your client (“I deserve $1 billion for their blatant discrimination.” Or “I never settle on principle.”).
— The opposing attorney or client (“He needs to bill this case a little longer…. And besides, he’s not an employment lawyer so he doesn’t get what’s going on”).
In other words, spending time on a mediation brief that addresses all of the legal reasons why you win will probably not have much impact on a dispute that is driven by ego, culture, or the defendant’s inability to pay a judgment. Convincing the mediator that you have a summary judgment case, and asking that the mediator “pound this into the plaintiff’s thick skull” (whatever that means) will not really help a dispute driven by emotion and a sense of betrayal.
In a personal injury case, a brief focused on the negligence standard will not really help if the dispute is over whether the injury is a pre-existing one.
In the example above, the driver is probably the plaintiff’s own self-image and the impact of his family and culture: Since he believes himself to be such a role model in his immigrant community, and since it is important for him as the male/bread winner/father to support his family, it clearly couldn’t be his own fault that he was fired. Thus, the termination can only be explained by the employer’s blatant discrimination. (At least this is an explanation that the plaintiff can sell to his family and community.)
The Advanced Mediation Brief
So what helps the mediator? What should you include in your brief? Sure give a brief summary of the law and facts. Sure tell why you’ll win at trial, or at summary judgment. Sure tell about the killer witness you have. But then focus on the cause of the impasse. Explain what is REALLY going on…what is lurking below the surface of the legal case. Explain the dynamics driving the conflict. Let the mediator know what he or she is likely to be faced with once the mediation gets rolling.
In the example above, a defense brief containing a short legal analysis of wrongful termination in California, combined with a few facts confirming cause for termination and lack of damages is helpful. But that doesn’t explain why this case exists…or how a mediator might approach it for resolution purposes. Letting the mediator know of the cultural issues at play, on the other hand, as well as the family issues involved, allows the mediator to be more sensitive at the outset and to explore ways to address those issues in the context of an overall settlement. The plaintiff could do the same in his brief.
And then suggest some solutions. If you have some ideas for addressing the true drivers of the dispute, don’t be shy. Share them with your mediator. Any ideas are useful in getting everyone thinking of ways to address the underlying problems.
So help your mediator help you. Give him what he needs to do his job. Help her understand what’s driving the dispute. Share with him your insights. Propose some solutions. And then be prepared to work towards that common goal—a good night’s sleep.
I welcome any and all comments!