Mediation Briefing | Efficiently Preparing For Your Mediation

Something I have noticed in the mediation world is the difference of opinions surrounding mediation briefing. Some mediators prefer extremely detailed briefs from the parties that resemble something like a motion for summary judgment with tons of arguments and law. On the flip side, some mediators prefer briefs that are short and simple rather than a short novel. Detailed facts of the case but less of the case law heavy arguments. I am personally a fan of the short and concise mediations briefs that give me the information necessary to see both party’s positions. In my opinion, this is more efficient for everyone involved. However, just because I prefer one approach does not mean the other approach is not also beneficial. Below, are some common benefits and pitfalls to mediations briefing that may help you (or your attorney) re-think your strategy the next time you are preparing for a mediation.

The obvious benefit of mediation briefing is that it allows parties to outline their respective positions and interests. By presenting their arguments and evidence in writing, parties can articulate their perspectives clearly and thoroughly, ensuring that their viewpoints are understood by the mediator and the opposing party. This comprehensive presentation of information facilitates a more focused and productive discussion during the mediation session, enabling the mediator to gain a deeper understanding of the underlying issues and interests at stake.

Moreover, mediation briefing encourages parties to critically evaluate their own positions and consider the strengths and weaknesses of their arguments before the mediation session. This self-assessment can lead to a more realistic and pragmatic approach to resolving the dispute, fostering a greater willingness to engage in meaningful negotiations and compromise. Additionally, the process of preparing a mediation brief can prompt parties to gather and organize relevant evidence and information, which can contribute to a more efficient and informed mediation process.

Furthermore, mediation briefing promotes a structured and organized dialogue during the mediation session. By providing a framework for the discussion, the briefs serve as a reference point for the parties and the mediator, helping to maintain a focused and constructive conversation. This structured approach can foster a more collaborative and cooperative atmosphere, encouraging the parties to actively participate in the negotiation process and explore mutually acceptable solutions.

However, despite these benefits, mediation briefing can also present certain downfalls that may impede the resolution of disputes. One of the key challenges is the potential for parties to use the briefs as a platform for adversarial or confrontational communication, thereby escalating tensions and hindering the negotiation process. When parties view the mediation brief as an opportunity to reiterate their legal arguments or engage in aggressive rhetoric, the collaborative and problem-solving nature of mediation can be undermined, leading to an impasse in the negotiations.

Moreover, the reliance on mediation briefing may lead to a rigid and inflexible approach to the mediation process, limiting the ability of parties to adapt and respond to new information or developments that arise during the session. When parties adhere strictly to the content of their initial briefs, they may overlook the potential for creative and innovative solutions, thereby restricting the possibilities for reaching a mutually satisfactory agreement.

Additionally, the preparation of mediation briefs can be time-consuming and resource-intensive, particularly in complex or high-stakes disputes. The need to gather and organize extensive documentation and evidence can impose a significant burden on the parties, consuming valuable time and financial resources. This burden may deter some parties from engaging in the mediation process altogether, especially if they perceive the preparation of mediation briefs as a barrier to accessing timely and cost-effective dispute resolution.

Preparing a mediation brief can be a tricky game, but is also crucial to an effective outcome. To maximize the effectiveness of mediation briefing, it is essential for parties and mediators to approach the preparation and presentation of briefs with a collaborative and problem-solving mindset, prioritizing open communication, flexibility, and a willingness to explore creative solutions. It is also important to consider the mediator’s preferred style of briefing (i.e., long, subjective, and comprehensive briefs vs. short, objective, and concise briefs).

By leveraging the advantages of mediation briefing while mitigating its potential downfalls, parties can optimize the potential for successful dispute resolution through the mediation process.