What a Mediator Would Like to See in a Mediation Brief

Katherine Gallo, Discovery Referee, Special Master, Mediator

In many cases mediation is the most cost-efficient and effective method of resolving a case. Often, litigants can save a lot of money and time when mediation is held after first tier discovery has been completed, once the core facts are determined that circumscribe the dispute.

In order to facilitate early resolution many courts have implemented mediation programs and asked mediators to volunteer their time. Unfortunately, mediators can get discouraged with these programs if the parties are not prepared and the mediation briefs lack the necessary information. Here is a suggested guideline as to what mediators would like to see in your mediation brief.

Prepare your brief as you would prepare your motion papers to the court. Present things as you would to a judge or jury, so the mediator can fully represent your position when negotiating with the other side. If you have exhibits, highlight the relevant portions.

Depending on the type of case you have, your brief should contain the following:

  • Timeline of events
  • A statement regarding liability: Whether you are admitting liability or comparative negligence for the purpose of the mediation.
  • Relevant legal authority, including important legal issues and where they are likely to be raised: Motion for Summary Judgment, Directed Verdict or Motion in limine.
  • Outline, calculation and total of all damages and offsets.

Depending on the type of case you have your exhibits should include the following:

  • Color copies of all photographs.
  • Highlights of pertinent deposition testimony and statements.
  • Highlights of all pertinent information in the police report, medical records, employment records, contracts, etc.
  • Diagrams and photos of accident scene (especially auto accidents).
  • Google maps if relevant.
  • Any expert report you are relying on.

This is not an all-inclusive list, but it is a starting point.

Remember to serve the brief at a minimum five days before the mediation so that the mediator will have time to review the brief, conduct any legal research they may need and possibly do a pre-mediation conference call.

About the author:

galloKatherine Gallo, a BASF mediation panelist since 2010, is a renowned ex-pert in complex discovery issues. Visit her discovery blog at www.resolvingdiscoverydisputes.com. Learn more about BASF’s Mediation Services at www.sfbar.org/adr/mediation.