For those of us who remember this campaign, we recall Oldsmobile going to great lengths to change the image of an Oldsmobile: what it looks like, feels like, etc.
Similarly, I would love to change what a Mediation Brief looks and feels like. As I have said to colleagues many times, your Mediation Brief does not have to look the same way as they did in 1992. And that doesn’t simply mean scanning a pile of paper into PDF format, to replicate the bound volume you would have sent via courier in the old days. Instead, we have the technology and creativity to make the Mediation Brief into a truly compelling piece of advocacy.
As I have written before, mediation is advocacy, and in most cases, the primary venue for advocacy since civil cases, and Employment disputes in particular, rarely get to trial. Unfortunately, very few lawyers take the opportunity to deliver a kick-ass Mediation Brief, choosing instead to use the same old format and approach they have used since they began practicing, which was probably based on the format their mentor used since they began practicing, and so on, and so on.
As a Mediator, the only information I have before the hearing is what is contained in the Briefs. While some counsel do a better job than others in preparing a compelling brief, there is still so much more that can be done. If you want to win at mediation, rather than just settle, take every opportunity to get the mediator to see the case your way; that starts with the Brief.
Make the Key Points Easy to Find
Since I specialize in mediating Employment disputes, I will focus on those. If there is a termination of any kind, then the amount of notice or “severance” will be an issue, so be sure to put all of the factors that impact this forward and make them easily identifiable. Instead of making me read through paragraph after paragraph to piece this all together, put a simple table at the beginning, such as
| Length of service | 8 years, 5 months | |
| Age at dismissal | 34 | |
| Date of dismissal | March 16, 2022 | |
| Position | Director of Marketing | 3 direct reports
15 indirect reports Reports directly to President |
| Compensation | $285k annually | $200k base salary
$50k average bonus $12k car allowance $20k LTIP $3k benefit premiums |
| Relevant contractual terms | ESA only | Click here for the contract Note that Plaintiff alleges that the contract was signed without valid consideration and is unenforceable. |
| Mitigation | New employment after 8 weeks with comparable compensation | |
| Type of Dismissal | For cause | Plaintiff engaged in violent behaviour on numerous occasions. |
It is also helpful if you can indicate which of these points are contentious. Ideally, the parties will be able to agree on almost all of these points.
Make Documents (and anything else) Easy to Find
You can easily insert hyperlinks to key documents, and even to key portions within them. So when you reference the termination clause that you rely upon, insert a hyperlink to that so that your mediator can easily access it.
Similarly, your digital brief does not have to look like a piece of paper. You can embed videos, audio recordings, and anything else that will be persuasive. Rather than state that “the plaintiff then proceeded to punch his supervisor”, it will be much more compelling to add a link to a video of the altercation, which your mediator can view while reading your brief instead of waiting until the hearing and wondering if any compelling evidence exists.
Conversely, don’t do a document dump and simply attach all of your Schedule A documents, making it impossible for your mediator to know which documents are important without spending hours going through every one.
Tell a Story
Don’t simply copy and paste from your pleading. Pleadings are limited by specific rules, including the prohibition on argument. Mediation Briefs are not so constrained, so be creative, be compelling, and use your advocacy skills. Just as you would tell a story in your closing argument, do the same in your brief. Capture your audience’s attention from the outset, spoonfeed the key information to them, and then wrap it up in a persuasive bow. Humans are moved by good stories, especially when backed up by evidence.
Let your Mediator Know Where Things Stand
If offers have been exchanged, set them out. Tell the mediator where in the litigation process you are, what is scheduled, and also how much you anticipate everything will cost your client. After all, the best reason to settle is if it beats the alternative, which is proceeding with litigation. So make it easy to compare the two options.
Be Creative
That is my bottom line: be creative and be persuasive. Don’t use the same old format for every brief, paste the text from your pleading, and put a bunch of documents into tabs behind it. Instead, make your brief visually appealing, come up with a compelling story, make it easy for your mediator to identify the key facts, and spoon-feed the evidence to them using embedded media, hyperlinks, and anything else you can. A kick-ass Mediation Brief will help you win at mediation, not just settle.
This article was originally published on the OBA Alternative Dispute Resolution Section’s articles page.
