Mediate and Arbitrate Like it’s 2024

  • February 05, 2024
  • Stuart Rudner

As a mediator and a techie, I have frequently observed that we do not use technology to its full potential. That is true in our day-to-day lives, and particularly true when it comes to advocacy at mediation and arbitration. The reality is that most mediation briefs that I see don't look all that different than the ones that I worked on when I was a junior at the end of the last century. However, we have so many tools available to us now to put the strongest case forward and convince your mediator or arbitrator of the strength of your position that is a shame to let them go to waste. Below are a few suggestions for how you can be more effective as an advocate in the context of alternative dispute resolution processes.

A Kick-Ass Modern Brief

I have often commented on the fact that the first opportunity that you have to influence your mediator is your brief. A good mediator will review the briefs before the hearing and although they will maintain an open mind, they will have started to form an opinion as to the issues in the case and the strengths and weaknesses of each side's position.

I always tell people that the best way to get me on their side is to spoon-feed the evidence to me so that I will understand what their position is and what evidence they have to support it. As everyone knows, the mediator is effectively negotiating both sides of the case. I have to go to the other room and put forward your position. If I put that forward and the other side asks me what evidence there is to back it up, and I have to say that I have not seen it yet, or it will be produced if we don't settle today, then my position is not going to be particularly strong, which means that yours will not.

Conversely, if you make it easy for me, I will understand your case and be able to put it forward strongly. For that reason, I encourage you to embed the persuasive evidence right into the text of your brief. In other words, if you are referring to something that could be proven by a photograph, video, audio recording, or text excerpt from a text e-mail, then embed that video, photo or other media right into the brief. There is a lot more to be gained by putting a video of an employee assaulting his colleague right into the brief rather than saying that the evidence will be forthcoming, or forcing your mediator to find the video buried in your materials. Similarly, excerpts of written communications can be embedded right in the document rather than forcing the mediator to find an attachment.

On that point, if you need your mediator or arbitrator to find a document in a digital world, use hyperlinks. You can hyperlink to locations within the same document, as well as to external documents. Either way, the key point here is to make it as easy as possible for your mediator or arbitrator to see exactly what you want them to see. If you make them look for it or work for it, they may not see it.