A mediator is only as effective as the information you give them. Creating a mediator's brief not only saves time during the mediation but allows the mediator to prepare and research ahead of your case.
Purpose of the Brief
This is your opportunity to tell your mediator the strengths and weaknesses of your case as well as bring them up to speed on the events so far. Think about it like a prologue to a book or the snippets at the beginning of a tv show so that the viewers understand what is going on.
Summarize the litigation
o A short description of the case and the
o The key legal issues driving the case
o The core factual issues that the parties
* What is the status of the litigation?
Is discovery complete?
* If no, what issues remain outstanding?
o Does this need to be addressed during the mediation?
If there are depositions or other discovery materials that will help the mediator understand the case, then definitely include them with the mediator's brief.
What settlement discussions have taken place to date?
* What is the last received settlement amount and terms?
o How was the offer communicated?
Include a range on what your goals are during settlement and what things are necessary for a settlement to happen. If non-monetary compensation is a factor, include what is being looked for (return of items, apologies, restoration of water rights, etc.)
What are the roadblocks to settlement?
* What extraneous issues are affecting the settlement discussions?
Sometimes litigation becomes personal - where one party feels they cannot allow another to "win" or have an upper hand. If this is a factor in play, giving the mediator a head's up will allow them to handle the issue from the beginning of the mediation.
* What is it your stakeholder really interested in?
* What are their concerns with a mediated settlement?
What do you need in the MSA in regards to terms (including payment of damages), non-disclosures, future actions, timelines, etc.?
If particular language is needed, send it to your mediator ahead of time so they have it on hand when they are preparing the MSA. It will speed up the last stage of the negotiations once agreement has been reached.
Additional resources provided by the author
The American Bar Association has great materials on preparing for mediation.
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