In nearly every mediation I’ve conducted, the parties submitted a combined total of at least two, sometimes three, occasionally four, periodically five and every-so-often six or more mediation briefs. Having mediated more than 2000 matters, that means I’ve read between 4000 and 5000 briefs. Therefore, I think it’s fair to say I’ve probably encountered just about every conceivable mistake. What follows is a brief summary of some of the mistakes I’ve encountered most often. Feel free to share this with the associates, law clerks and paralegals who help draft your mediation briefs:
If you find it necessary to devote a treatise to Howell, Ortega, and other seminal legal authorities, you may have selected the wrong mediator. Unless the dispute turns on some esoteric point of law, it’s safe to assume mediators know the applicable law. Recurring disputes in most substantive fields (i.e., personal injury, employment, real estate, habitability, landlord/tenant, professional malpractice) generally share certain things in common: the legal principles upon which the claim is founded and/or upon which the claim will be resolved. Despite this fact, I frequently receive briefs from each party citing the exact same cases and statutes — with which, of course, I’m already quite familiar.
“THE BURDEN OF PROOF“
The ability to “cut and paste” has made the process of brief-writing infinitely more efficient and significantly less time-consuming, but does not dispense with the need to carefully proof your brief before you submit it. To the contrary, the burden to proofread is arguably even greater as a result. Briefs that misstate the gender of the plaintiff or misidentify the defendant as “Walmart” when the defendant is actually “Target” are telltale signs you didn’t do so — and tend to prove embarrassing.
“ADJECTIVES, ADVERBS AND HYPE, OH MY!”
Impassioned rhetoric, inflammatory language and glaring exaggeration serve no legitimate purpose. The objective of the mediation brief is to inform, not to persuade. In fact, the overuse of hyperbole (“plaintiff has zero chance of prevailing,” “plaintiff has experienced unending and excruciating pain every day since this horrific, life-altering event”) may actually cause an otherwise neutral mediator to subconsciously or unconsciously question not only your credibility but the credibility of your client.
“THE EXCHANGE RATE“
Based upon my own unscientific study, parties exchange mediation briefs less than ten percent of the time — an exchange rate that ignores the very real benefits that are derived from sharing briefs. The purpose of mediation is to resolve conflicting viewpoints. Explaining your position to the other side is an integral part of the process. If you’re concerned your brief might “offend” the other side, the solution isn’t to designate the brief “confidential” — it’s to write it in such a way that it won’t. Unless your mediation brief contains information that is literally confidential (i.e., information to be shared only with the mediator), there is no reason not to exchange briefs with the other side. In fact, even when you have confidential information to share with the your mediator, it’s better to exchange briefs with the other parties and separately share the confidential information with your mediator.
“THE LONG AND SHORT OF IT“
There’s a reason it’s called a “brief” rather than a “dissertation.” If you’re not able to tell the mediator everything he/she needs to know in 10 pages or less, you’ve probably included extraneous matters. As noted above, there’s no reason to devote pages of your brief to a summary of the applicable law. Similarly, mediators do not require a detailed chronological summary of every medical visit, nor do we need to review copies of every medical record. The now-common practice of attaching your entire file as an exhibit is entirely unnecessary.
Remember, mediators do not determine the facts; mediators facilitate discussions and negotiations. In order to do so, all we need is the following: (1) a brief summary of the facts; (2) a brief discussion of the issues which are in dispute and the respective contentions of the parties; (3) a brief history of any settlement negotiations that have taken place; and, most importantly, (4) a brief discussion of any matters that may prove to be an impediment to resolution.
If you still find that your brief exceeds 10 pages after implementing the above recommendations, borrow Mark Apelian’s idea. For those who don’t know Mark, his sense of humor is second to none. Two years ago, he submitted a 28 page brief — single-spaced, no less — deliberately numbering the last page of the brief “Page 10.” Until he pointed it out at the mediation, I hadn’t even noticed! His prank made for one of the funniest and most memorable “brief encounters” I’ve ever had!
As always, It would be my pleasure to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.
Floyd J. Siegal