Oct 30, 2020
ADR Times – Share Mediation Briefs to Save Time and Get Better Results
Mediation briefs should be shared well before the mediation session: to save time in session; to give each side the full force of the other’s positions; to give each side time to carefully consider the other’s positions and calmly prepare a response; to begin establishing the settlement ballpark. Let’s consider the alternatives, their bases and effects.
Most lawyers mark their mediation briefs “Confidential”, for the mediator’s eyes only. However, when asked, those same lawyers typically agree that the entire contents of their brief may be disclosed to the other side at the mediation session. In fact, they want the mediator to forcefully do so. So at the mediation session, the mediator walks back and forth between the rooms sharing positions. This often results in a situation where, well into the afternoon, we are finally close to where we could have been late morning had counsel shared their briefs with each other.