Let’s face it: If you show up right on time at your scheduled mediation expecting your mediation to begin, you may have already missed an opportunity.
Most mediators ask for briefs at least a week in advance of a mediation. These mediation briefs provide the mediator with a key opportunity to “tee up” the case for resolution.
How so? When done well, mediation briefs contain a compressed version of the facts along with citations to determinative points of law. Sometimes the resolution of a case will focus on a key point of law. But many times the most important settlement considerations rest with the facts.
Not every brief is supported with a hundred pages of exhibits. And many times a lengthy exhibit set is completely unnecessary. But many briefs describe crucial evidence that isn’t included in an exhibit set.
A mediator serves many functions. One of most important is impartial evaluator. If one of the parties misapprehends the strength of their opponent’s case, the mediator needs to do some serious “reality checking.” What better way to do this than by openly and fairly evaluating the documentary evidence or the deposition testimony that supports (or cuts against) a case?
If the parties don’t supply the mediator with key documents in advance of the mediation then a mediator may not have time at the mediation to review and digest these documents. But if the parties provide evidence to the mediator in advance of the mediation, then the mediator can review, consider, and evaluate it and be prepared on the day of the mediation to pointedly discuss it with the each side.
This raises the following question: When does a mediationactually start?
Many mediations start when counsel and their clients show up at the mediator’s office. But if the mediator is proactive, the mediation can actually start as soon as the mediation briefs are submitted. A thoughtful, analytical mediator will carefully review the briefs shortly after receiving them, looking for key issues, legal points, facts or documents that bear further examination. If the case appears to be centered on key facts or evidence, these mediators can then ask the parties in advance of the mediation to supply copies of this evidence to the mediator. This evidence allows the mediator to quickly evaluate the strengths and weaknesses of the case. When the parties show up on the day of the mediation, they won’t be starting from ground zero. Instead, the mediator will be primed and ready to go with a thoughtful evaluation of the case and the critical evidence. Such a mediator will be fully prepared to discuss with counsel the reasonable likelihood of a judicial determination if the case doesn’t settle – and possibly highlight and underscore even greater incentives for settlement. A mediator who prepares in this way significantly enhances the likelihood of settling a case at mediation.
Life is busy and law practices are often overwhelming. But when counsel engage a mediator, they certainly want to provide their briefs at least a week in advance so that the mediator can fully appreciate the strengths of their case. When counsel do provide briefs well in advance of the “mediation day,” then the mediation doesn’t really commence when these attorneys shake hands with the mediator. These mediations actually start a week beforehand when the briefs are submitted and the mediator first begins to see what the case is all about.
Robert B. Jacobs is a mediator and arbitrator with over 30 years of litigation experience. He mediates business, real estate, construction, personal injury, wrongful death, trust and probate cases. He is a designated Super Lawyer and holds an AV rating with Martindale-Hubbell. He was the 2020 chair of the ADR section of the Contra Costa County Bar Association and the co-chair of the ADR section of the Alameda County Bar Association. From 2018 through 2021 he was an update author for the CEB treatise Real Property Remedies and Damages. Reach him at [email protected].