COMMENTARY: How to prepare a mediation brief

By Edmund J. Sikorski Jr.

In August, The Legal News published my article, “Why should you prepare and exchange a mediation brief?” The central idea was that a mediation brief was an opportunity to persuade “the other side” why resolution on your suggested terms was in their best interest by providing facts, arguments, and summaries without the constraints of the formal rules of evidence.

This article offers a suggestion on how to develop a mediation brief.

A mediation brief is by its nature a close relative of an Opening Statement to the trier of fact. An Opening Statement serves to preview the evidence and make it easier for the trier of fact (jury) to follow to the conclusion intended. In the case of a mediation brief, the “first juror” is the decision maker on the “other side” who will presumably read the mediation brief before the actual mediation and formulate some conclusions about case resolution.

Social science research indicates that approximately 60-80 percent of juries make up their minds about which side’s story is the truth after Opening Statement. This is in fact confirmed by the age-old adage that first are indeed lasting impressions. The same result obtains in the case of a mediation brief.

Just like an Opening Statement, a mediation brief should tell a story that starts with a theme that is well thought out in advance. The theme should be one sentence or phrase that appeals to the moral force of the “jury” and captures the essence of the party’s story. A good theme should be easy to remember, useful in decision making, supported by the evidence, and consistent with the “juror’s” concept of fairness and justice.

There are four magic words that introduce a theme: “This case is about ...”

The theme should be expressed in a single opening paragraph that combines an account of the facts and the law in such a way as to lead to the conclusion that you will prevail if the matter proceeds to and conclude in trial.

To develop and express a theme, answer three questions:

(1) What happened?
(2) Why did it happen?
(3) Why does it mean my client should win?

An effective mediation brief should tell the same story as an Opening Statement. It should be the road map to constructing an Opening Statement.
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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. He can be contacted at edsikorski3@gmail.com.