Helping Parties Prepare Persuasive Mediation Briefs: Who Do You Think You’re Talking To?

  • January 19, 2018
  • Megan Keenberg

The strategies, techniques and tactics lawyers use to advocate for their clients will necessarily be informed by the context of the advocacy, the forum in which it takes place, the relief available and, most importantly, by the audience. The party autonomy inherent in mediation shifts the focus of advocacy from an impartial judicial audience, to a partisan audience. Unlike in court, where advocacy efforts are directed towards an impartial trier of fact, the primary target audience in mediation is the opposing party: a party with a vested adverse – often hostile – position. 

The mediation brief is a crucial instrument that can make or break mediation efforts. Many counsel make the mistake of treating their mediation briefs as a summary judgment factum, focusing on the legal merits of the case and presenting adversarial arguments. A strident mediation brief that exclusively argues the legal merits of the case will usually fall on deaf ears – indeed, such a brief may backfire, leading to the opponent becoming further entrenched in her position, and less inclined to settle. This approach ignores the party autonomy inherent in the mediation process and undermines any attempt at integrative bargaining.

As mediators, we can mitigate against the undermining effects of such a mediation brief by expressly setting out what will be compelling and assistive in the mediation process (and what won’t be) in the pre-mediation conference. To this end, the critical ground to be covered in the mediation brief includes:

I. Key Facts

This section should focus on the material facts of the case that are crucial for making out the claims and defences advanced by each party. It should also include facts about the context in which the dispute arose and about the sphere in which the parties operate. In addition, the parties should identify the facts anticipated to engender sympathies in the ultimate trier of fact, and which facts about the opposite party may not pass the smell test.

II. Key Legal and Evidentiary Issues

A short description of the key legal issues, citing one or two leading statutory and common law authorities, is required in order to situate the dispute within the legal framework from which it arises. While a factum-like argument about the relative merits of the case is unlikely to be persuasive, parties and their counsel should include in this section any known evidentiary frailties of their opponent’s case, such as credibility issues for their key witnesses, the potential unavailability of certain witnesses who reside extra-jurisdictionally or who may be infirm or elderly, insufficient documentary evidence to support a key fact, or contradictory evidence.

III.  Status of the Litigation

The status of the litigation will provide important clues to the mediator about the ripeness of the dispute, and the readiness of the parties to settle. Parties who have not yet progressed past the pleading stage may not be ready to settle: they haven’t spent much on legal costs yet, and they haven’t yet had an opportunity to test the theories of their cases in discovery. As a result, they may be overly optimistic about their chances of success at trial. At the other end of the spectrum, when the parties are set down for trial, they may have become entrenched in their positions, and the sunk costs of trial preparation may be a strong motivator to continue to trial.

IV.  Settlement Discussions to Date

Many parties are reluctant to provide this information in the mediation in the likely vain hope of recovering more, or paying less, than they had previously offered. The omission of these important cues to the Zone of Possible Agreement only serves to keep the mediator in the dark: the parties themselves are well aware of the settlement positions taken to date, and there is nothing to be lost by setting them out for the mediator. Parties should include any written offers, particularly Rule 49 offers, with their attendant costs consequences, in their key document brief. In addition, parties should include details of any circumstances that have changed the settlement landscape since those offers were made.

V.  Barriers to Settlement

After the settlement positions have been laid out, the parties should include the parties’ best guesses as to why they are not able to come to a resolution of their dispute without the assistance of a mediator. Common barriers include (i) a party’s overconfidence in the merits of their case; (ii) differential access to key information; (iii) the need for an expert opinion; (iv) the parties’ mistrust of one another; or (v) power plays in which one or more parties are attempting to wear down their opponent, and drain their resources, in an effort to force a capitulation.

VI. Party Dynamics

The mediation brief should describe in some detail the relationship between the parties: its duration; whether it is ongoing; how they have dealt with previous disputes; whether a party represents a wider constituency of stakeholders and what the broader interests of that group are; and the existence of any coalitions in multi-party disputes.

VII.  Risk Analysis and Costs Estimates

While a hostile opponent may be disinclined to pay any credence to the legal merits of the other party’s case, they may be more susceptible to arguments based on process risks, including: the potential damage to reputations occasioned by a public court dispute; the high costs of legal fees on both sides; the difficulty in accurately predicting the outcome of trial, and the risk associated with the zero-sum game of litigation; the stress of submitting to cross-examination; and, often most importantly, the time and attention that will be diverted from other personal and business pursuits (and the potential to forfeit income from such pursuits).

A mediation brief that includes these elements will be immensely helpful to the mediator and will drive productive settlement discussions. However, moving from the standard factum-like brief to this kind of mediation brief represents a sea-change that will be met with resistance in many cases. Mediators can ease the transition by explaining the benefits of these inclusions at the pre-mediation conference, and addressing any concerns around disclosure.


About the author

Megan Keenberg, B.A. (Hons), LL.B. (Hons.), LL.M. (Disp. Res.)(2018) is a commercial litigator and mediator at Van Kralingen & Keenberg LLP. She has significant experience in the pursuit and resolution of high-stakes, multi-party commercial disputes, both as representative counsel and as a mediator.

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