Sharing Mediation Briefs
I always ask for a written mediation brief (or mediation statement) when convening and conducting a mediation, and I always suggest that it be shared between or among opposing counsel in advance.
From experience, however, I know that attorneys in the community in which I mediate (Southern California) will, more often than not, send me a confidential brief “not to be shared with the other side” or “for the mediator’s eyes only.”
When that happens, I receive all of this good information, but because it is “confidential” there is nothing I can do with it to help the parties assess their risks (unless I obtain further express permission – which might be grudgingly given later if at all – to share the brief or some of the information in it).
I read all of the mediation briefs that come to me. Most often, there is no reason that I can perceive why any of it should be kept confidential.
Usually, these mediation briefs contain factual statements and legal arguments that the other side really should consider – because it will be different from their own.
Thus, I think it is really helpful for each side to know what the other side perceives about the case in order to assess the attendant risks if that other side prevails.
On the other hand, if there is something truly private, that only I as mediator should know, I recommend a private side letter. See, https://karpmediation.wordpress.com/2014/01/11/being-candid-and-the-almost-never-used-side-letter/
Otherwise, let’s share so litigants, their counsel, and insurers when participating, can know and understand what they might be facing if settlement does not occur.
David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com