Practice Tips from Judge Meredith Jury (Ret.): Mediation Briefs

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Question from old bankruptcy lawyer:

Judge Jury, I have a mediation coming up.  Do you have any suggestions about what I should put into my mediation brief to make it useful to the mediator?

Response from Judge Jury:

A mediation brief should start by identifying the parties, their attorneys, and who will be participating live in the mediation.  Phone numbers and email addresses upfront will save the mediator time later.  For my purposes, it would also be helpful if that introductory paragraph specified whether or not the mediation is being conducted under the General Order mediation program, because for those mediations, forms must be completed and sent to the Mediation Program Administrator upon completion.

A short introductory paragraph describing the issues in the dispute is mandatory.  Remember, the mediator has not seen the pleadings and knows virtually nothing about the case, so also identify your client’s role – trustee, plaintiff, defendant, debtor – depending on the dispute at hand.  Then, before launching into any advocacy arguments, please provide a description of your client’s version of the pertinent facts.  Reference to exhibits or pleadings attached to the brief is helpful, but never substitute a pleading or motion for the summary description which should be set forth in the mediation brief.  Do not expect the mediator to read an attachment to understand your arguments.

After the issues at hand are clear and the facts are described, you may present legal arguments on why your client should prevail (or not) if the court rules. But remember:  this is not purely an advocacy document.  You may cite to key cases on the issues in dispute, but it is wasteful of your time, your client’s money, and the mediator’s time to write a brief which reads like a motion before the court, with cites to all authorities and multiple, complex arguments.  This is not a time to churn fees.  If the law is unsettled on the issues at hand, say so.  You will help the mediator be effective if you present both sides of the pertinent arguments, something most briefs fail to do.

Next, describe to the mediator the unseen, unspoken factors which might affect the success or failure of the mediation.  The economics or finances of your client are always relevant in a bankruptcy mediation, whether debtor, creditor, or trustee/estate.  Are there family members or business partners whose interests also will be in play?  Is this an old trustee case that the UST wants completed yesterday?  What do you know that the mediator could only guess at which will affect the outcome?  Say it.  This type of information may be provided in a confidential email if the briefs are being shared, something I leave up to the attorneys.  (The General Order requires exchange, a practice I do not endorse as mandatory.)

Finally, describe all efforts to settle the case to date; offers, counteroffers, prior mediations (and why they failed) – virtually anything you have communicated to the other side which might have been construed as a settlement gesture.  There is nothing worse for a mediator than to learn during the session that a party made a lower demand or a higher offer than one put onto the table presently.

One last word about exhibits.  If you send voluminous exhibits, please provide a roadmap as to which are the most important to be reviewed and/or printed for the mediator to understand the issues at hand.  Only describing them in the accompanying brief will create extra work for the mediator.  Better to provide a list of exhibits as the first page of a compendium and then star or otherwise highlight the key ones, so the mediator can focus on them.

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Judge Meredith Jury (Ret.) served as a United States Bankruptcy Judge in the Central District of California for more than 20 years and also spent a decade on the Ninth Circuit Bankruptcy Appellate Panel. Now retired from the bench, she remains active in the legal community doing mediations, a role she deeply enjoys. Over the course of her career, Judge Jury estimates she has conducted more than 1,200 mediations.