In mediation, the dilemma is in the details

Contrary to what many lawyers believe, most mediators, and I'm among them, look forward to receiving mediation briefs and generally enjoy reading them. I'm always curious to find out what the case is really all about and I always look forward to reading not just the facts but also the legal theories - some of which are new and some of which are, let's just say, "different." But there are briefs and then there are "not-so-briefs." It's the latter category that presents a dilemma to lawyers and mediators as well.

Any relatively complex litigated matter is likely to be chock full of details. There are factual details, procedural details, insurance coverage details, "emotional" details, relationship between party details, relationship between lawyers details and many other details. Naturally, not every detail is equally important and it's unnecessary to provide the mediator with every seemingly equally important detail. The challenge is to determine what details are important and to find the most effective and persuasive way to present those details to the mediator.

Let's start with an example of what not to do, using a hypothetical situation (although one close to actual events that occur repeatedly) in a complex business dispute. The briefs arrive at the office shortly before 5 p.m. on the day before the mediation. Each brief is over 75 pages long. One brief is accompanied by a three-ring notebook of over 100 exhibits. The exhibits include the contract, the complaint, the answer, the cross-complaint, the answer to the cross-complaint, the plaintiff's motion for summary judgment, many pages of interrogatories and interrogatory answers, many pages of deposition transcripts and, of course, hundreds of emails. The three-ring notebook contains no summary or table of contents of the exhibits. The exhibits themselves are devoid of highlighting. The briefs are not two-hole punched at the top.

The briefs contain a lengthy factual background, followed by an even lengthier procedural history, including a description of all the demurrers filed, along with various motions to compel discovery responses. The factual history was so complete that it was only missing a genealogical chart so I could trace the ancestry of the parties back at least 100 years. Because the briefs arrive so late in the day, but because the parties have obviously expended a great deal of time, effort and money to prepare the briefs, and I assume that all of the facts, arguments and exhibits are important, I read everything carefully and by 9 or 10 o'clock that evening, I have finished and I'm ready to home for the day, eagerly awaiting the mediation the next morning.

What's wrong with this picture? Naturally, since it's meant to illustrate a point, just about everything.

First, if you want someone to read what you have written, it's a good idea to get it to the reader well in advance of the hearing so the reader has plenty of time to read and consider what you have written. Even if the mediator reads the brief the day before the mediation, it's entirely possible that instead of reading the brief in a relaxed and contemplative manner the mediator may be agitated or pressed for time - torn between the obligation to read the brief and other commitments which make it difficult to read and assimilate the material at the last minute.

Second, a brief rarely, if ever, has to exceed 25 or 30 pages, even in a complicated case. If you doubt this, remember that briefs filed in court have had page limits for quite a long time, yet somehow we all manage quite nicely to squeeze the facts, law and arguments into the page limits.

Third, a brief of 50, 60, 70 pages or more leads most mediators to conclude that the author has failed to separate important facts, important aspects of the procedural history and important legal arguments from those that are, quite simply, unimportant. As a result, the mediator, who always knows less about the case than the lawyers and their clients, is obliged to determine what is important and what is not. This is neither efficient nor effective.

Fourth, even the most complex cases nearly always come down to a few truly important facts and an equally limited number of important documents. The rest is interesting (or not) but rarely important to a resolution of the dispute. The procedural history of a lawsuit is seldom important to the overall resolution of the case (dispositive motions are the rare exception). Likewise for discovery - unless there's something truly dispositive or startling, excerpts of discovery are just taking up space.

Next, here's an inside secret of mediation: Mediators don't like notebooks. Generally, we all put briefs into files and notebooks don't fit into files. Similarly, the courtesy of two-hole punching the briefs is greatly appreciated and conveys to the mediator you are thoughtful and professional.

But you might think: "Wait a minute! I have some really important details - discovery or otherwise - and the mediator really needs to know them. How do I get them across without putting a document in front of the mediator that's too long, too complicated and too off-putting?" There is an answer to this important question. The first step is to sit down and think through your case to figure out what is really important. The second step is to communicate that important information in the most effective way.

An example or two will help to illustrate this. Let's say that there's something in the complaint, or the answer, that's really important. The most effective way to communicate that important information is not to bury it by attaching the entire pleading as an exhibit to the brief. The best way is to summarize it. Just say: "We are suing for breach of contract in this case (the nature of our claim is important because we recover attorney fees and costs if we prevail)." Or, "We have multiple theories of recovery in this case. Not all are equally strong but we are confident that we will win on at least one of our theories." Or, if there's a reason a particular legal theory is important to the resolution of the case, explain why - don't just say you have a particular theory and expect the mediator to make the connection.

Let's also consider the situation where a party said something remarkable in a deposition. Rather than attaching pages of transcript, "embed" the quote by saying: "The Plaintiff admitted in his deposition that he wasn't injured by our product. Here is what he said:" And then quote it.

The same idea applies to contract provisions, letters and emails. Rather than putting the whole document in front of the mediator and making the mediator search for the relevant language, just quote it. "In an email dated XXXX, the Defendant said: 'XYZ.'" Or, "The contract says "X" at paragraph 10, and this is important for the following reason." If you absolutely must present an email "chain," highlight the important language so the mediator doesn't have to search for it.

A brief I recently received in a complex public works construction dispute did an excellent job of presenting important information effectively. The defendant general contractor was being sued by a subcontractor. The general contractor had a contract provision that eliminated nearly all the subcontractor's claim. Rather than appending the entire 30-page contract, the general contractor quoted the language in the brief and explained why it was dispositive of nearly the entire claim. The general contractor had many factual defenses as well. Rather than providing a lengthy narrative, the brief presented the issues in bullet point fashion with a short description to prove each point.

It is entirely possible to discuss a case with many complicated facts and legal issues in a concise and persuasive way, but it takes a realization of the importance of doing so and real work to accomplish this task. Remember to separate the truly important facts from those that are unimportant. Summarize those facts using few words. Extract important phrases from documents, embed them in the body of the brief and highlight them if you must attach them to the brief. Keep briefs short, to the point and give the mediator plenty of time to review and consider the points you are making. The result will be an effective, persuasive brief that will help you get the best possible settlement at the mediation.