For those of us who remember this campaign, we recall Oldsmobile going to great lengths to change the image of an Oldsmobile: what it looks like, feels like, etc.
Similarly, I would love to change what a Mediation Brief looks and feels like. As I have said to colleagues many times, your Mediation Brief does not have to look the same way as they did in 1992. That doesn’t simply mean scanning a pile of paper into PDF format, to replicate the bound volume you would have sent via courier in the old days. Instead, we have the technology and creativity to make the Mediation Brief into a truly compelling piece of advocacy.
As I have written before, mediation is advocacy, and in most cases, the primary venue for advocacy since civil cases, and Employment disputes in particular, rarely get to trial. Unfortunately, very few lawyers take the opportunity to deliver a kick-ass Mediation Brief, choosing instead to use the same old format and approach they have used since they began practicing, which was probably based on the format their mentor used since they began practicing, and so on, and so on.
As a Mediator, the only information I have before the hearing is what is contained in the Briefs. While some counsel do a better job than others in preparing a compelling brief, there is still so much more that can be done. If you want to win at mediation, rather than just settle, take every opportunity to get the mediator to see the case your way; that starts with the Brief.