Please submit mediation briefs at least one week before the mediation. Briefs should include, at minimum, key facts, all key documents and all pertinent deposition excerpts, as well as the specifics of any prior settlement negotiations. The documents and deposition excerpts are crucial.
I do not set a page limit, but please note that I care far more about substance over form. The brief does not even have to be lengthy, "look pretty" or include basic employment law, such as the elements of a cause of action. Your brief can be short (thereby saving yourself time and your client money), pointing out the key facts, and providing the important documents and testimony. Of course, if there are important legal issues that are unique to the case, please provide legal authority to support your position.
The reason I request the briefs 7 days before mediation is that I will review the briefs within 1-2 days of receipt and will reach out to discuss any follow up issues or to seek any additional information. I strongly believe that this pre-mediation process will significantly increase the chances of settling the case and will enhance your preparation for the day of mediation.
All of that said, I understand that litigators are very busy and sometimes are unable to provide mediation briefs 7 days in advance of mediation. If you need additional time, of course, reach out to let me know.
I highly encourage the parties to share briefs. I strongly believe that sharing information regarding the parties' respective positions and assertions is crucial to each party's ability to fairly and reasonably engage in a pre-mediation assessment of likely settlement value. Surprises at mediation are often counterproductive. Indeed, for example, had defense counsel been informed of a key fact that hurt the defense case, perhaps defendant would have come to the mediation with more authority. Likewise, had Plaintiff's counsel been aware of a key fact damaging the Plaintiff's case, counsel could have spoken to Plaintiff and prepared Plaintiff for the negative fact and the likely reduction of settlement value well before the mediation, rather than doing so "on the fly" at mediation. Surprises can also inflame the opposing side, sometimes resulting in early termination of the mediation.
I strongly encourage counsel to circulate a draft long-form agreement before the day of mediation so that the parties may begin thinking about potential nonmonetary issues. I have seen more than one deal fall through because it was not locked down and signed off on the day of mediation when the opportunity was available.
