Prepare for Mediation Success: Six Tips for Writing a Strong Brief

by Zela “Zee” G. Claiborne, Esq.

Writing a persuasive brief is one of the most important things an attorney can do to prepare for mediation of a business dispute.  A good brief provides the opposing side with information they need to consider.  Perhaps even more important though is an excellent brief that can help the mediator assist with successful resolution.

Here are six tips:

1. Outline the facts of the case, describing them from your client’s point of view.  For example, what duties are included in the contract between the parties?  What were the actions that led to the claimed breach? Review the key facts in some detail but avoid repetition and leave out peripheral issues. Then edit to remove the excess words. Your brief will be most persuasive if it is pared down and covers only significant facts.
2. Include a discussion of the law that applies to the case. Again, keep it short since a list of cases and lengthy legal arguments may be useful at trial, but will not be the basis for a mediated settlement. It is not a good idea to send the mediator a copy of your Complaint or Motion for Summary Judgment. It is even worse to outline the details of your latest discovery dispute. Mediation is not about winning or losing legal arguments. Put those items aside and focus on the key legal principles that apply and that should be considered when evaluating the case for settlement.  Then edit again.
3. Watch your tone. There is a big difference between mediation advocacy and trial advocacy. Mediation advocacy can be persuasive without being overly adversarial or demeaning. Do not accuse your opponent of lying or of cooking the books. After all, the goal is to find a business solution that the parties can accept.  Hopefully, they will be able to shake hands at the end of the day.