JAMS ADR Blog by Chris Poole
Here are some Do’s and Don’ts from a mediator’s perspective to help you prepare your mediation briefs.
Do remember that the mediation session will likely be the last day of your case. Treat the event with the importance it deserves, and start by preparing an effective, timely brief.
Do submit and exchange your brief at least one week, and preferably two, before the session. This allows time for opposing counsel to get it to their client. Particularly if an insurance company is on the other side, it needs at least 10 days to consider and react to the brief — perhaps by increasing its reserves on the case. Moreover, mediators have a lot to read — help them out by giving the time they need to digest your brief and put in a call to you to discuss the case.
Do set a collaborative tone and don’t insult your opponent. Fisher and Ury said it all in Getting to Yes: “Be hard on the issues, but soft on the people.” Argue the facts and the law firmly and persuasively to show your case to its best advantage. Also remember, you are trying to reach agreement with these people, not beat them into the ground. When you want to reach agreement with someone — be it a spouse, child, partner or legal adversary — it doesn’t help to accuse them of fraud, racketeering, dishonesty and bad faith. Do let the facts and the law speak for themselves — do not hurl ad hominem insults and gratuitous accusations.
Do come clean on any weakness in your case. If you are strong on liability but shaky on damages, say so in your brief — and then explain how you are going to deal with the challenge. Nothing will increase your credibility more with the mediator and the other side. Nothing will torpedo faster any credibility you have than for the mediator to learn about some big weakness in your case only from the other side’s brief.
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