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A Reaction to Some Mediation Briefs

June 19, 2012

Sometimes I receive one of those mediation briefs that is really a renamed demurrer thanks to the magic of word processing.

(A demurrer is a paper filed with the court that says the plaintiff’s complaint is no good and the plaintiff’s case should be disregarded.)

This is not what I want and not what I request.

When I get one of these, it does not tell me about the case and how it can be settled.

Rather, it tells me about the lawyer who submitted it and/or his client.

When I get one of these, I can imagine any of these reasons for receiving it:

∙    The lawyer does not understand the mediation process and/or has not educated the client about it sufficiently to justify the time/expense to prepare it;

∙    The lawyer does not know what is important for mediation and/or how to prepare for mediation;

∙    The lawyer does not have enough time to prepare for mediation;

∙    The lawyer or client or both do not think that the time investment in preparing for mediation is worth it;

∙    The lawyer or client, or both, do not want to go to mediation in the first place, or they think it is just a waste of time;

∙    The lawyer has been told by the client not to spend a lot of money preparing for mediation;

∙    The lawyer or client, or both, are too entrenched in the dispute to see a way out of it;

∙    The lawyer has delegated the mediation brief to a subordinate that does not know what is important or has restrictions on preparing it;

∙    The lawyer really wants me to know why the complaint is flawed as opposed to anything else he or she could tell me.

I prefer a mediation brief from a lawyer that sheds light on what really happened between the parties, how they got to where they are in their dispute, and how they plan to get out of it.

I like to have information that tells me, from the lawyer’s perspective, about the negotiation we can have, what is important to each side, what are the goals in settling the case and how do we get there.

I like to know how I can help the lawyers help their clients.

That is much more useful.

A really informative brief (not a cut and paste demurrer) that focuses on the mediation process and how to use it effectively is a gem to receive.

I would really rather receive such gems.


From → Mediation

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