Tips for Effective Mediation Briefs

March 10, 2025

Congratulations- everyone has agreed to mediate your conflict!  Now what?  Many mediators, myself included, require the parties to exchange mediation briefs prior to the first mediation session.  You may also submit a confidential mediation brief for the mediator’s eyes only.  What goes into these mediation briefs, and how can you effectively convey your stance before formal negotiations begin?

Purpose of a Mediation Brief

The mediation brief serves three primary functions:

1. Educate the mediator about the key facts and legal issues,

2. Showcase your strongest legal arguments, and

3. Demonstrate your preparedness and commitment to resolution.

Remember that the neutral mediator knows nothing about your case, except perhaps some basic information from a client intake form.  The mediation brief is your opportunity to clearly and concisely (usually between 5 and 10 pages) explain what’s going on.  You should provide an introduction and case summary, factual background, legal issues and analysis, damages analysis, settlement history, and a proposed resolution.  Attach pleadings and key evidence like the contract in dispute.  Avoid including extraneous or lengthy documents, such as deposition transcripts or medical records that are not quoted in your brief.  Do cite relevant and controlling case law, statutes, and ordinances in your legal analysis.  This helps determine what a possible resolution would look like at trial or through a motion so that you and the mediator can compare settlement offers to your best and worst alternatives to a negotiated agreement (“BATNA” and “WATNA”).

From a mediator’s perspective, it is obvious which parties put effort into their mediation briefs and which don’t.  Generic mediation briefs parroting the pleadings or simply denying violations took place do little to advance a party’s perspective and should be avoided.

Considerations for Confidentiality

Exchanged mediation briefs contain information you want the opposing party to see, whereas confidential mediation briefs do not.  The latter contain sensitive information, strategy discussions, or settlement parameters--make sure you label them as CONFIDENTIAL.  Many mediators recommend submitting both briefs, allowing for transparency while also maintaining confidential communications with the mediator.  I always ask the parties what they prefer to do.

My own experience is that exchanged mediation briefs greatly expedite the settlement process by building trust, making sure everyone is on the same page, and getting to yes as quickly as possible.  On the other hand, confidential mediation briefs usually generate mistrust and contribute to issue confusion, which takes additional time to overcome.  I have had mediations that felt more like discovery because certain issues were kept confidential, despite the fact that eventually they would need to be disclosed.  Of course, I am happy to facilitate this information clarification, but it just costs the parties more because it takes more time.

Rather than ask parties to submit confidential mediation briefs, my procedure is to conduct separate pre-mediation phone calls where any confidential issues can be discussed.  I ask parties if there is anything not in their brief that they want to tell me in confidence.  As mediation unfolds, parties naturally open up more to me (in confidence) about their bottom lines, real interests, and concerns about the case.  Often, these verbal expressions would not have been revealed even in a confidential mediation brief, as they require trust to be built up.  Skilled mediators can use confidential information to expand the pie by, for example, trading items of different value to both sides (“logrolling”).

Tone and Presentation

Whether you use a more formal pleading or letter format, the important thing to consider is that your tone should be persuasive and professional.  Avoid unnecessary antagonism or inflammatory language that could hinder settlement discussions.  A collaborative approach in mediation is often more effective than aggressive positioning, though the latter may be better in litigation.

I have seen many family cases where spouses include largely irrelevant fault-based evidence like extramarital affairs in text messages, despite California being a no-fault divorce state.  The intention is to cast the other side in a negative light and gain more sympathy and goodwill.  However, this often backfires and looks petty.  Additionally, the attacked spouse often retaliates and it is very difficult to get back to amicable relations.  One well-respected family attorney even suggested using an AI tool to edit texts into a more professional tone.  While I am not suggesting folks do all that, I do think spouses should adopt a more persuasive and professional tone.

Timing of Submission

Mediation briefs should be submitted at least five days before the mediation to allow all parties sufficient time to review and prepare.  If anyone requires additional information or documents, I will raise those issues in a pre-mediation phone call.  This way everyone can hit the ground running on the first session.

Confidentiality Protections

California Evidence Code §1115-1128 provide strong confidentiality protections for mediation communications, including exchanged mediation briefs and settlement offers.  You can be reassured that candid settlement discussions will not be used against you later in litigation.  Furthermore, your mediator may not be subpoenaed to testify against you based on information learned in mediation.

Conclusion

An effective mediation brief furthers the settlement process by clarifying legal and factual issues and demonstrating your willingness to engage in good-faith negotiations.  Your brief can set the stage for a more productive mediation and increase your chances of achieving a favorable resolution.  Of course, every mediator has different preferences on briefing, so you will need to make sure you agree with their approach before proceeding.  How do you think a mediation brief, exchanged or confidential, can help or harm the settlement process?