A. What to consider before drafting
1. Who is the real audience?
i. Mediator? Yes. Needs to be informed about factual framework and the issues in dispute and the parties’ positions. This is NOT a
factum.
ii. Opposing counsel? Not really. Counsel knows the case and the issues.
iii. Opposing party? Quite possibly. This is a chance to set out your view of the case for the opposing party to read, unfiltered by opposing counsel.
iv. Your own client? Your client will read your memo so you will want to keep that in mind as you draft.
2. What is the procedural and legal context of the mediation?
i. Is this a true attempt at resolution or is it simply a mandatory step in the litigation?
ii. Have discoveries been held? This will significantly influence how much detail goes into the memo.
3. Tone
i. This is a facilitated settlement meeting, not a motion, trial or appeal. So your memo is not a factum.
ii. The mediator is not a judge who will determine who is right and who is wrong.
iii. Lay the groundwork for resolution, not total victory.
iv. Always adopt a civil tone, even if you are taking strong positions.
4. Goal/Objective
i. Does your client want to settle no matter what? Or is there a reasonable range within which the case can resolve?
ii. Is your goal to maintain a firm position with little compromise or flexibility?
iii. Is this an exploratory exercise to test the resolve of your opponents?
B. Form and Content of the Brief
i. Provide a pared down overview in plain language. This is your one minute ‘elevator pitch.’
ii. Then outline the essential factual matrix, stripping out the additional facts that are commonly found in pleadings.
iii. Only include facts necessary for the mediator to be able to understand the issues.
iv. Identify the real issues in dispute, not every single issue in the case.
v. Provide a concise statement of your client’s legal position, referring to case law only if absolutely necessary.
vi. Use ‘point first advocacy’ throughout your memo.
vii. Address non-legal issues which can influence settlement such
as:
a. Availability of insurance
b. Solvency of defendant/collectability of judgment
c. Costs
d. Reputational risks
e. Precedential value
f. Delay
viii. PRO TIP: Where possible, acknowledge weaknesses of your case or strengths of opposing case, then explain how they can be
addressed. This sets the stage for productive mediation.
ix. Similarly, highlighting areas of agreement will be a productive element of your memo.
x. If there are credibility issues with the parties or key witnesses, be sure to highlight these and acknowledge the risks associated with them.
xi. If you have non-party witness information, be sure to produce it in advance. Consider attaching witness statements to your brief.
xii. Consider including actual numbers, your assessment of value, in your memo. Will this be your opening position at the mediation itself?
xiii. Use headings throughout the memo to facilitate navigation.
xiv. Always be editing. Always be paring down and stripping out superfluous information.
C. Attachments to the Brief
i. Restrict attachments to key documents only.
ii. Fewer documents have greater power.
iii. For longer documents, attach only key excerpts, or consider putting the excerpts directly into the body of your memo.
iv. Where it is warranted, a chronology can be very helpful to the mediator as a stand alone document.
v. If your opponent has a key document or expert report, acknowledge and address it and even consider attaching it.
vi. Don’t overwhelm the mediator with voluminous attachments
vii. If you serve your materials electronically, be sure to bookmark or separate the attachments for ease of navigation.
viii. If you must attach case law, highlight the key passages. Consider attaching excerpts only.
D. Timing/Delivery
i. Contact opposing counsel in advance to discuss a schedule for delivery of briefs whereby plaintiff serves brief first.
ii. If you have a new expert report or new information, make sure it is served as far in advance of the mediation as possible.
iii. If you want to influence the opposing party directly (especially an insurer), make sure you serve your brief several weeks in
advance of the mediation – ideally a month.
iv. Send two copies of your brief to opposing counsel and invite them to send the second copy to their client.
v. If serving electronically, include the suggestion to forward the brief to their client.
vi. Similarly, ALWAYS ensure your client sees and reads the opposing brief, not just your own.