A mediation brief is a document that outlines disputed issues between two parties, expert reports, legal arguments, case law, and suggestions on how to resolve a dispute. This essential document becomes an integral part of the mediation process. Still, some litigators and mediators have differing opinions on whether you should keep it confidential or non-confidential.
Keeping it confidential means the opposing party does not see your brief before the mediation date, and vice versa. In contrast, non-confidential means both parties have access to each other’s information in the lead-up to the mediation date and can prepare accordingly.
While some litigators may urge you to keep your cards close to your chest, a non-confidential brief can present all manner of benefits. Keep reading to learn why sharing your pre-mediation brief might be the right decision to make.
You Want to Settle
The whole idea behind mediation is settling a dispute that may have been ongoing for some time. If you don’t share your findings before the process begins, that may not always happen. There is rarely any value in keeping information to yourself that may hinder your efforts to see a resolution to your issue.
You Get to See the Opposing Party’s Brief
The exchanging of briefs before a mediation means there are no surprises for either party. You are both aware of each side’s version of facts and can prepare for them accordingly. Given that mediation can be a stressful time, sharing your brief can mean you’re not blindsided by the information you haven’t had a chance to discuss or prepare a response for. Everyone is ready for the process to begin and for a resolution to be found.
You Can Withhold Information
Some litigators may recommend making your brief confidential because it contains information you don’t want to share with the opposing party just yet – or ever. While you are in mediation to share your discoveries and theories, you don’t have to share everything.
If there is something in particular that you wish to keep confidential, you can arrange for this to remain that way in advance. You can phone the mediator before the mediation occurs, speak to them in person prior, or submit a letter brief in advance.
It Speeds Up the Process
A confidential mediation brief may seem like it can put you in a desirable position, but it can prolong the mediation session. When you submit your brief on the day, it has to be read out by the mediator. Both sides have not had a chance to read or respond to the information within it. As a result, this has to occur at the beginning of the session, thus prolonging the outcome.
However, if briefs are shared beforehand, there is plenty of time to learn both versions of facts and differing positions on the matter. You can then begin the mediation session by immediately jumping into the settlement process.
Litigators and mediators can often work quite differently when it comes to pre-mediation briefs. Mediators recommend you share them in advance, while many litigators don’t. There doesn’t need to be a hidden smoking gun when trying to reach an agreement. Lay all your cards bare from the beginning, and your mediation session may be able to get off to a flying start.