By Bruce Edwards
Earlier this year, my colleagues at the Weinstein International Foundation sponsored a mediation brief writing competition. The goal of the competition was to inspire and develop mediation brief writing skills in law students from around the world. In preparing the competition, it became clear to my colleagues that little has been written about the important role mediation briefs play in the broader topic of mediation advocacy. Additionally, little formal criteria could be found to assist the judges in evaluating and scoring brief content.
All too often, mediation brief writing has been given short attention by legal professionals eager to move on to acquiring the oral advocacy skills necessary for persuasion. Their failure to appreciate the importance of an effective mediation brief, as well as understanding what goes into writing one, represent a missed opportunity. If the goal of mediation is to change the mindset of others involved in a dispute, a properly prepared mediation brief represents the earliest and potentially best time to shape their thinking.
For most mediators, the criteria of “I know a good brief when I see one” represents the extent of their conversation about what makes an effective brief. Their lack of clarity does little to advance the learning of others.
What is it about a mediation brief that differentiates one that persuades from one that further separates the parties? What do experienced mediators value most when presented with a brief?
What to consider when writing a mediation brief
1. Share the brief whenever possible. The quintessential first issue for every brief writer is whether to share it with others involved in the case, or simply provide it for the mediator’s private consideration. I believe that briefs should be shared whenever possible, since the brief is the first step toward transforming the opinions of others. It will also promote the free exchange of information once the mediation is underway. Parties who wish to address confidential information with the mediator or provide suggested settlement ideas in advance can do so in private phone conversations or separate written submittals.
2. Avoid the repurposed legal document. All too often, attorneys who are pressed for time or don’t understand the value of a well-prepared brief, opt to submit an existing legal document to the mediator, such as a pleading or motion. In the process, they have missed an opportunity to clearly and succinctly state their client’s position. Whenever possible, strive to write a persuasive statement that is different in tone and content from other documents regarding the case.
3. Summarize facts efficiently. Many mediators suggest that parties submit mediation briefs of a certain length, often no more than ten to fifteen pages, since the amount of detail required for trial or arbitration is not essential for a facilitated negotiation. Yet, many a night is spent by mediators reading twenty-five to thirty-page tomes, plus reviewing multi-page exhibits. The effective mediation brief is not a James Michener novel and should seek to capture, not dull, the reader’s attention.
4. Cite supporting caselaw appropriately. Many disputes have at their core a finite legal issue or two that is worthy of developing in detail. In those instances, don’t hesitate to highlight statutory language or caselaw, always underscoring the most important words or phrases for consideration. Most mediators don’t need a primer on the elements of a negligence cause of action or what a party needs to prove to establish a breach of contract. Your key legal arguments will be diluted if the mediator needs to cull important information from an overdeveloped legal presentation.
5. Set the proper tone. Herein lies the true art of mediation advocacy. The most effective mediation briefs thread the needle between forceful advocacy and adopting a tone of conciliation. They implicitly or explicitly convey that the party is there in good faith, willing to consider appropriate concessions, and looking to collaboratively engage. The best mediation advocates preview their briefs with their clients while explaining why they need to read differently than their motions for summary judgment.
6. Look to persuade, not put off. Here again, the challenge is to convince others of the strength of your position without alienating them in the process. The most effective mediation briefs avoid irritating words or phrases that cry out for response. They marshal the facts without unnecessary exaggeration or hyperbole while acknowledging gaps in the road to deductive conclusions. In sum, they reflect a best attempt at an intellectually honest assessment of the parties’ position, presented in a manner that causes the other side to reflect, not immediately respond.
7. Imagine and address what the other side needs to claim success. If the goal in mediation is for all sides to agree, then that process should begin with developing a mindset of what the other side(s) need to gain approval from their constituents. The author of the seminal treatise Getting To Yes, Dr. William Ury, describes this process as helping the other side “build a golden bridge.” It’s never too early to suggest solutions to a seemingly intractable problem, particularly ones that line up with the other side’s interests. Suggesting these types of solutions may lend itself more comfortably to private brief submittal, rather than sharing with all parties.
8. Don’t overlook negotiation history. Many a negotiation has stumbled out of the starting blocks, if not broken down entirely, when parties have not properly informed the mediator of all historical negotiations. This includes not just the formal exchange of demands and offers, but also any informal discussions that might have shaped expectations coming into the mediation process. An effective mediation brief will include conversations, as well as written or other communications between attorneys or clients, that might impact starting negotiation positions, if not ultimate settlement outcome.
9. Address obstacles to settlement. If obstacles have previously occurred in the form of court delays, an inexperienced judge, or other shared concerns, this information can be included in the mediation brief. If the mediation advocate thinks there are difficult personalities, a challenging client or other sensitive issues, a private statement submitted to the mediator or phone conversation may make sense.
10. Acknowledge weaknesses. The most effective mediation briefs honestly assess both the strengths and weaknesses of one’s position. The mediation advocate’s goal is to develop trust and credibility with the mediator, and with the other side. What better way to begin that process than to acknowledge a missing piece of evidence, adverse testimony or ambiguous legal precedent? This approach allows the brief to address shortcomings in a way that communicates to others there’s nothing that hasn’t been considered.
11. Propose workable, creative solutions. One of the many benefits of the mediation process is its flexibility and creativity in fashioning solutions that match up with the interests of the client. Mediation briefs that limit their discussion to judicially available remedies alone error by omission and overlook the potential of a win-win result. While being mindful of the propensity for others to reject a proposal simply because it comes from an adversary, it’s imperative that the mediation advocate consider all potential solutions.
12. Develop a well-written brief. The most persuasive arguments begin with a well-written brief. It sounds obvious, but the opportunity to create a positive first impression often comes in the mediation brief. A well-written brief, with attention to clear, precise language, not only advances the argument to its fullest potential but also presents the author and client in the best possible light.
Mediation advocacy represents the next frontier in training new attorneys to realize their full potential as client advocates. Mediation advocacy begins with a well thought out and crafted mediation brief, one that strikes the right balance of substance and style. Just like those law students in the recent international competition, learning how to write an effective and persuasive mediation brief represents a true art form. For attorneys interested in optimizing results for their clients in a facilitated negotiation, start by mastering the art of mediation brief writing.