The firm handles corporate and technology matters, high stakes litigation and complex financial transactions.
I wish I had thought of it. And let me say at the outset that while I am, of course, right with this answer, I welcome feedback from others, including my mediator friends out there, who think wrongly…I mean differently than I.
But with that said, I have two answers for you. The first is the standard, generic answer that will work just fine for most mediation briefs.
But if you are willing to go a little deeper into mediation psychology and toy with the possibilities of a more effective mediation brief, take a look at answer No.
The Normal Mediation Brief: While it might do in a pinch, so will a simple phone call with your mediator, and the phone call will invariably be more effective and useful. Instead, try to think like a mediator and give him or her what he or she needs to do his or her job.
Sure mediators are looking to understand the basic facts, law, and procedural posture of the case; but they are much more interested in discovering the BS — the Barriers to Settlement what did you think I meant? Mediators are looking to discover the key one or two factual issues that are really in dispute; the one or two legal issues that the parties disagree on.
What are the stakeholders really interested in. They want to know what the parties have already discussed in terms of settlement, and what they each think the problem is. Instead, I think most mediation briefs can be done in fewer words than this verbose answer — seriously three to seven pages should do it, even ones for patent or other complex cases.
And if you include the following topics, you will have provided your mediator with just about everything he or she needs to get the job done: This should not be long or detailed; just enough to introduce the dispute.
Remember, we are simple people…. Where in the process is the case? What is the status of depositions and other discovery? Who said what and what was the response?
Describe what you believe to be the current roadblock to settlement. A little more introspection would be nice. Describe any dynamics that might be impacting the views, beliefs, desires and positions of the parties, including personality conflicts of parties or counsel or secret needs or desires of the parties.
This is generally the most valuable to your erstwhile mediator…the hardest to discern for the advocate, perhaps, but the most valuable nonetheless. Again, this can be done in 5 pages. Plus, if we are doing our jobs well, we will have had pre-mediation conference calls with each side, so we can delve into some of these topics in more detail if they seem particularly pertinent.
I know this is your next question. Should you share your brief with the opposing party, or submit it to the mediator confidentially? The answer is, in good legal fashion: Items 5 and 6 above in particular are ripe for confidential submission to the mediator.
After all, the goal of the brief is to assist the mediator, not inflame the opposing party. And yes, you can exchange part of the brief, and submit part confidentially to the mediator.
And is it possible there could be any more to say about mediation briefs? I mean seriously, how complicated can this be? For the Advanced Mediation Advocates: But 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?Click here for the corresponding HTML documentation that is generated by doxygen.
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A creative brief is a communication tool that outlines a project’s requirements, expectations, goals, and resources. It helps ensure that all stakeholders in a project are on the same page from the start, which also helps the project run smoothly, stay on schedule, and be successful.
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