How do you prepare an excellent Mediation Brief? There’s some controversy: should it look like a legal brief, should it provide evidence as Exhibits, should it be exchanged or confidential, should it reveal weaknesses as well as strengths, how long or how brief? You don’t need to agonize about the fine points if you follow these suggestions:

First of all, let’s stop thinking of the Mediation Brief as a legal pleading or motion. If we think of it as a “Memo to Mediator” submitted in advance of the mediation, I think it will free the disputants and their lawyers to be a little more candid.

Second, I am not an advocate of sharing all of the Memo with your adversary: if you choose to exchange briefs, then certainly communicate some of the finer points confidentially to the mediator via email or separate submission.

The Memo should do what trial lawyers do best: tell a story of your case as you would to the Judge or Jury. Who is your client? What happened to him/her? What was the result? What does he/she want? As the Defendant, you will want to highlight your defenses to this story by again answering the questions: Who is bringing the lawsuit? What does your client stand for? What happened from your perspective? How do you evaluate the damages if liability is proven?

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