By Edmund J. Sikorski Jr.
Mediation briefs are not re-paginated motions for summary judgment. Mediation briefs tell the mediator in advance the essence of the factual and legal essence of the dispute in as an objective manner as possible and thus help the mediator fulfill the function of a cognitive coach in focusing and formulating reality testing questions.
Mediation briefs are also an opportunity to persuade the “other side” by presenting facts, arguments, and summaries of evidence in visually embedded form without the constraints of the formal rules of evidence that make the opposition reluctant to proceed to trial and why resolution on your suggested terms are in their best interest.
Do everything within your power to objectify the claim, position, or defense.
Make the content easy and simple to understand. Brevity is best. Scientific and psychological studies advise that the most persuasive presentations are those that can be readily understood, grasped, and adopted by a sixth grade elementary school student.
In a mediation setting it is not important that every part of your case be a winner. Where there are glaring weaknesses, acknowledge them right up front and deal with them in a light that does the least damage before the opposition can put their spin on them. Your case will then have the advantage of consistency and credibility. The mediation model is predicated on all of the parties having all the Same Information If all the cards and supporting documentation are not “on the table” it is unrealistic to think that there can be a satisfactory result or at least resolution on terms acceptable to all.
In dealing with insured claims, the adjuster and claims representatives are in reality the first jury. These interested parties go through a process to determine the settlement value of a case, and this always happens before mediation. In modern claims management, rarely, if ever, is only one person involved and in control of settlement valuation. There is a small army and computer programs that demand documentation to support valuation and settlement authority. Although it may seem counterintuitive, if you do the adjuster’s and claims representative’s job for them by summarizing numbers and supplying all supporting documentation, case resolution results will improve. In dealing with other claims that involve a corporate decision making ladder, the same is also true because there are many divergent inputs needed in formulating an acceptable solution – the process of making a business decision.
The three keys to preparing the mediation brief are:
(1) Persuasive presentation. This requires furnishing the information in a way that the opposing party can understand and utilize.
(2) Basing case valuation on well-researched specific case analysis documentation.
(3) Delivering the mediation brief to the adjusters and opposing counsel for delivery to appropriate decision makers at least 30 days prior to the mediation date regardless of the subject matter of the mediation.
The central idea shared is that creating a document that will move your opponent toward agreement rather than a continuation of hostilities will create an environment within the mediation forum most likely to lead to conflict resolution.
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Edmund J. Sikorski Jr. is an emeritus member of the Michigan Bar and the recipient of 2016 National Law Journal ADR Champion Trailblazer Award.
