Matt White | JAMS
Why sharing your arguments before mediation can strengthen your position and improve the prospect of settlement
We live in a deeply divided world. People struggle to agree on basic facts, such as the effectiveness of vaccines, the outcomes of elections and the role of humans in climate change.
But there is one thing upon which all (or nearly all) mediators agree: Do not routinely serve confidential mediation briefs.
A confidential mediation brief, in this context, isn’t referring to those governed by California Evidence Code § 1119, which provides that all mediation briefs are confidential and inadmissible in court. Here, this term refers to the practice of sending a brief to the mediator but not sharing it with opposing parties. This won’t help your cause, and it may wreck your chances of a successful mediation.
Help the Mediator Help You: Share Your Mediation Brief
Imagine receiving a letter from a lawyer demanding $250,000. The lawyer claims that you breached an employment contract but does not explain in detail what you did wrong, or how the lawyer calculated the damages. Would you pay it? Would you, to resolve an unpleasant encounter, offer half of the demanded amount?
Or maybe your wealthy neighbor crashed into your parked car and totaled it. The neighbor has admitted fault but—without explanation—offered you only one-third the value of the vehicle. Would you take it?
I’m sorry to break this news, but that’s the effect of a confidential mediation brief. You are asking your adversary to do something (pay more money, accept less money, take an action they don’t want to take), but refusing to explain your reasons for the request.
Give the Other Side Time to Evaluate Your Case
A shared brief sets out your case for the mediator and, more importantly, the other side. You want them to understand the strength of your case and the risks they face if they don’t settle. You also want them to have time to think about your case, review your evidence and run your claim up the chain of command if necessary. That’s not going to happen if they hear your theories from the mediator on the day of the hearing.
Equip the Mediator to Advance Your Position
Serving a confidential brief also hampers the mediator’s effectiveness. You want the mediator to present your best case in the other room, but they may be reluctant to share information if they learned it from your “confidential” brief. Help the mediator help you by allowing a full exchange of information, especially information that promotes your case and leads to a favorable settlement.
Reserve Confidentiality for Truly Sensitive Information
Of course, there are some things you may not want to share with opposing counsel. Maybe you want the mediator (but not the other side) to know that your client is desperate to settle. Or maybe you want to wait before disclosing an expert’s criminal record until after their deposition. No problem! You can share data with the mediator during the pre-mediation call or during private session. You can also submit to the mediator a supplemental confidential brief containing only this top-secret intelligence.
Even if you have explosive evidence you want to save for an ambush at trial, please reconsider that approach. First, this smoking gun may have to be shared during discovery, defeating the element of surprise long before you get to the courtroom. Also, because most courts require all evidence and witnesses to be disclosed in advance, you will end up revealing it before trial regardless. Hiding evidence will not engender goodwill with the opposing party or with the court. Why not share the winning evidence now, when it can lead to the best possible outcome for your client, before you incur the work and expense of trial preparation?
Make Mediation Count
In any event, your chances of going to trial are slim. More than 98% of civil cases in California will resolve short of trial. Mediation, not trial, is where almost all of the action is. Give it your best shot.
Share the strengths of your case in advance of the hearing. You can’t expect an adversary to capitulate without providing good reasons. Confidential mediation briefs do not serve your cause.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 801.641.8304, or email experts@adviseandconsult.net.