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JEAN LAWLER:
Hello, I’m Jean Lawler. I’m your host of ROADS TO Resolution ~Closure and ~Certainty. It's a pleasure to be here with you today. As a mediator, I am honored to be invited into other people’s lives for a few hours. Lives–that like all of our lives–are shaped by the many roads that have brought us to our “todays”, and roads leading to the unexpected, and to the promises of “tomorrow”. So, that said, today let’s talk about the benefits of exchanging mediation briefs in advance of the mediation session.
Again I revert back to my time in practice as well as now more than five years as a full-time mediator. It's been an interesting experience sitting on the other side of the table for that, and it's been a wonderful experience, and it continues to be of course. But exchanging mediation briefs…When I was in practice, very rarely did we exchange mediation briefs, and I think that’s still the case today. Most of the briefs I receive–or letters or position statements, things like that before the mediation from counsel–they’re confidential. And every now and then, there will be one that is shared. Some lawyer will share their mediation brief, and I think that more that I am on this side of the table now as the mediator, I really think that it's better to share your mediation briefs with whatever can be shared, and then on the other side of it, go ahead and give the mediator some sort of confidential statement, if you want, or an email–just a brief thing. Or hold the pre-mediation call with the mediator so that you can tell the mediator private things, there.
One way or another, you do have the option that way of not just exchanging information, but enlightening the mediator–which has always been the purpose and the benefit of the mediation brief, but the mediation brief can be so much more. It is something that you can use to explain to the other side–whoever the decision-maker might be on the other side–why you think you have a viable case, why it might have the value that you will ultimately be asking for, or be willing to pay once you’re in the mediation session. It can help set the stage, that communication. And I have seen it be where that information that’s been exchanged in advance then, really does set the stage and it sets it in a positive way. So whether there are documents to exchange, whether your position is….I wouldn’t say to make the outlandish positions, but make your position known in a way that the other side can say, “Oh, ok, I understand where they are coming from,” or, “Oh, that does give us pause,” either for helping us on the defense side or helping us on the plaintiff side.
There was a speaker recently for a webinar that I co-host on Thursday mornings–The New Possibilities Hour, and it's by Will Work For Food. Willworkforfood.news is the website. You can go check it out, I highly recommend it. But there was one of the speakers, Jonathan Teller, Jon Teller, he’s a plaintiff lawyer here in Los Angeles, and he spoke on his presentation–which is recorded and available to watch–about how he as a plaintiff attorney in personal injury matters, makes sure to send a mediation brief to the other side–to the defense side, as early as possible. And if I remember correctly, I think he said 30 days in advance. At the very least I would say no later than about two weeks in any kind of case. He said that allowed his opposing counsel to share it with his client, with the insurance company claims representative, or with whoever the decision-maker on the other side of his case would be, to ultimately settle the case or not.
Now in business suits, or property suits, contract disputes, professional liability suits, you will have lawsuits–some will have insurance involved and they do need time to be able to evaluate and properly be prepared for mediation. But the general counsel may be involved. If you’re on the plaintiff side, you would like the general counsel, presumably, to know what you are thinking. If you're on the defense side, you would like the plaintiff side to understand–perhaps, if it's an insurance case for example–in clarity, what case law you might be relying upon–just different things. Every case is unique, of course, and every brief or legal position will be different, whether it’s a factual position, or whether it’s a legal position, I just think that it helps get the case settled if the parties have exchanged mediation briefs in advance, with sufficient time being allowed for the lawyer and the decision-makers–whoever they might be–to be able to evaluate the other side’s position, and really think about it.
And then ideally you have your pre-mediation call, and you are at the mediation itself, and as you’ve probably heard me say–as well as maybe others–mediation is a process and not an event. And there are steps leading up to the mediation session, itself, that can help make the mediation session more productive, and as I mediate cases now, as the mediator, I really do find that it is very helpful if mediation briefs can be exchanged in advance. Again, with the private side note to the mediator for the things that you would want to be maintained as confidential.
So, that’s the thought today on exchanging mediation briefs. Thanks so much for joining me today. Please feel free to follow me on LinkedIn, connect with me there. Please subscribe to my Youtube channel, listen to my podcast. Come connect with me however it is you would like. Thank you so much. Talk to you later. Bye.
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