Are You Ready to Mediate?: Part 3 - Use the Mediation Brief to Preview Your Story

A conscientious and well-prepared mediator will spend time reading, reviewing and considering all the information you provide prior to the mediation date. The information you share will help to highlight areas of consensus and disagreement between the parties and provide insight into the key areas that need to be explored at the mediation. 
I read everything.  The more I know about the each side’s view of the case, including their interpretation of the facts, issues and the applicable law,  the more effective I can be in asking probing questions aimed at narrowing the gaps between opposing sides and finding potential building blocks for the resolution of each issue.

Depending on your forum, you may be required to prepare and submit a “mediation memorandum,” a “Statement of Issues” or a “mediation brief” in advance of a mediation.  For mandatory mediations conducted pursuant to the Ontario Mandatory Mediation Program, Rule 24.1 of the Rules of Civil Procedure requires the delivery of a Statement of Issues from each side.  The Statement of Issues should include the factual and legal issues in dispute, the party’s position and interests and the documents that the party considers to be of central importance to the dispute.  A mediation memorandum serves essentially the same purpose as a Statement of
Issues.  A mediation brief contains the Statement of Issues or mediation memorandum, as the case may be, as well as
further supporting materials that help to support and enhance the party’s story (for example, relevant case law, technical reports, medical reports, etc.).  The truth is that many counsel use the three terms interchangeably when referring to mediation materials provided in advance of mediation.  For the purposes of this discussion, I will use the broader term “mediation brief.”

An effective mediation brief thoughtfully and persuasively tells the party’s story (with insight into points of perceived strength and weakness), includes a brief review of the law that is in contention for the key issues in dispute, and highlights desired outcomes for resolution.  It should reference and include all relevant documents; it should be more than just a restatement of a pleading.

Generally, mediators require the delivery of a mediation brief at least one week before a scheduled mediation date.  For mandatory mediations conducted under Rule 24.1, each party is required to deliver a Statement of Issues seven days before the mediation session.   

I recognize that lawyers work under tight deadlines and balance large case loads, making the timely delivery of mediation materials challenging. However, increasingly, I am noticing a trend towards the delivery of briefs one or two days before the mediation.  I won’t speculate on the reason for the “seven day rule”, but I do appreciate receiving a party’s brief well in advance. It gives me an opportunity to carefully review and reflect, and to seek clarification or further information where needed.

A mediation session has the best chance for success when the parties and the mediator are well-prepared
coming into the session.  The timely delivery of a thoughtfully written mediation brief enhances everyone’s
preparation and helps to set the right tone for a focused and productive discussion.