Your mediation brief sets the stage for negotiations. Here are 6 tips for creating an effective brief aimed at enhancing your negotiating position.

1. Draft with the Opposite Party in Mind

While a number of people will read your mediation brief, keep the opposite party in mind when drafting it. If the language or tone of your brief is inflammatory or demeaning, you risk the opposite party arriving at the mediation with a combative or retaliatory mindset that taints the negotiations before they begin. In contrast, a crisp, scrupulously accurate and persuasive brief signals that their adversary poses a credible threat if the case does not settle. Bear in mind that your brief may be the first direct exposure that a corporate or insurance representative may have with the case, so it forms part of their assessment and negotiation strategy.

2. Keep it Brief

A brief should live up to its name. Distill the case to its essence, focus on what is important and communicate it concisely. Brevity is powerful.

3. Focus on Material Facts and Documents

Focus on the facts that are material to supporting your cause of action or defence or undermining your opponent’s position. If there are conflicting versions of a material fact, address why your version is more credible. Similarly, extract the relevant portion of a key document or expert report in your brief and append that document. Most cases turn on 10 key documents or less. Append only key documents.

4. Get Creative

Unlike pleadings and other documents in litigation, you can get creative with your brief. Seize the opportunity. Instead of simply saying that significant property damage was suffered, include some photos. Rather than stating sales suddenly declined, consider a graph comparing pre-event and post-event monthly sales. Points communicated visually make an impact.

5. Extract Key Cases that Support Your Position

A mediation is a negotiation conducted in the shadow of the law. A position unsupported by law is unlikely to be given much weight in a negotiation. So, put your best foot forward. For each of your core legal positions, extract or provide a pinpoint cite for (1) the highest level of authority that supports that position; and (2) if available, a supportive case that is factually similar/analogous. Append those cases to your brief. Do not append multiple authorities for the same proposition. If you want to demonstrate that additional authorities support that proposition, do this by way of a “see also” footnote, citing the other cases.

6. Address Damages/Remedies

Frequently, briefs address liability comprehensively but omit a meaningful discussion of damages/remedies, which lie at the heart of the negotiations. If you do not have an expert report, explain how math and law support your position on quantum.