Ontario Bar Association Program
on
Mediation “BOOT CAMP”
WINNING BRIEFS – TIPS, PITFALLS AND PERSUASION
by
Peter R. Braund, B.A. (Hons.), LL.B., LL.M.
YorkStreet Dispute Resolution Group Inc.
Monday, June 4, 2012
Ontario Bar Association
Continuing Legal Education
INDEX
INTRODUCTION …………………………………………………………………… 2
EFFECTIVE WRITTEN ADVOCACY ……………………………………………… 2
Is a mediation brief required?
Who are you writing the brief for?
The three C’s: BE CLEAR. BE CONCISE. BE CONVINCING.
PREPARING YOURSELF AND YOUR CLIENT …………………………………. 5
Preparing yourself
Preparing your client
WHAT TO INCLUDE / NOT INCLUDE IN YOUR MEDIATION BRIEF ………… 6
The mediation memorandum
The mediation brief
What (normally) not to include in the mediation brief
USE OF PRODUCTIONS / DEMONSTRATIVE EVIDENCE
AT A MEDIATION …………………………………………………………………….. 8
HOW MUCH TO SAY ABOUT SETTLEMENT / PRIOR OFFERS ……………… 9
CONCLUSION ……………………………………………………………………… 10
APPENDICES ……………………………………………………………………… 11
Rule 24.1.10: Procedure Before Mediation Session and
Rule 24.1.16: Consent Order For Additional Mediation Session
Form 24.1.C: Statement of Issues
Rule 50.04: Materials to be Filed (at a Pre-Trial Conference) and
Rule 50.11: Documents to be Made Available
Commercial Mediation Act, 2010, S.O. 2010, C.16, Schedule 3
INTRODUCTION
The purpose of this paper is to provide counsel with practical tips and suggestions in the preparation of effective (“winning”) mediation memoranda and mediation briefs.
The paper is divided into the following sub-headings.
Effective written advocacy
Preparing yourself and your client
What to include / not include in your mediation brief
Use of productions / demonstrative evidence at a mediation
How much to say about settlement / prior offers
The six most important words you can take away from this paper are the following:
BE CLEAR. BE CONCISE. BE CONVINCING.
EFFECTIVE WRITTEN ADVOCACY
Is a mediation brief required?
For the purposes of this paper, I define mediation memorandum and mediation brief differently. The mediation memorandum contains your narrative story and the resultant “pitch” on behalf of your client. The mediation brief contains the mediation memorandum and other written materials to better explain the story and to enhance the pitch.
The mandatory mediation Rule 24.1 applicable to certain actions in Ottawa, Toronto and Windsor, makes no reference to either a “mediation memorandum” or a “mediation brief”. Sub-rule 24.1.10, refers to a “Statement of Issues” that has to be filed in accordance with Form 24.1.C. The Statement of Issues is to “identify the factual and legal issues in dispute” and “briefly set out the position and interests of the party making the statement”.
Sub-rule 24.1.10(3) requires that the party making the Statement of Issues attach to it “any documents that the party considers of central importance in the action.”
In addition, the plaintiff is to provide a copy of the pleadings with the copy of the Statement of Issues that is to be provided to the mediator.
In the context I am speaking of therefore, the mediation memorandum equates to the statement of issues, and the mediation brief contains the statement of issues; the key documents; and in the plaintiff’s case, the pleadings.
By comparison, the Pre-Trial Conference Rule 50.04 requires a Pre-Trial Conference Brief to be served and filed containing concise (there is that word again) statements, without argument, of the following matters.
The nature of the proceeding
The issues raised and the party’s position
The names of trial witnesses and the estimated time their evidence will take
Steps required to be completed before trial and the estimated time for completion of each step.
In addition, “all documents intended to be used at trial that may be of assistance in achieving the purposes of a pre-trial conference such as medical reports and reports of experts” are to be provided to the judge or master presiding over the pre-trial conference.
The new Ontario Commercial Mediation Act, 2010 which applies to mediation of certain commercial disputes makes no reference to either a mediation memorandum or mediation brief. Section 7 of this statute provides however that the parties and the mediator may agree on the manner in which the mediation is to be conducted and may agree to follow a set of existing rules or procedures unless prohibited from doing so under another Act or regulation. This provision therefore provides flexibility to the parties and the mediator to determine the contents of mediation memoranda and briefs to be filed.
I have set out below in part D. of this paper suggested headings for the contents of both mediation memoranda and mediation briefs which can be used at voluntary mediations, and which satisfy the minimalist requirements of Rules 24.1.10, 50.04 and 50.11, and the Commercial Mediation Act, 2010.
Who are you writing the brief for?
Yourself? Your client? The mediator? Adverse counsel? Adverse parties? In a sense you are writing the brief for all of these persons.
The primary purposes of an effective mediation memorandum and mediation brief are to successfully propound your client’s positions and minimize the positions of adverse parties. You are therefore probably writing the memo and brief for primarily adverse counsel and his/her client, and secondarily for the mediator – to try and get him/her positively influenced to your client’s positions before the mediation starts.
The three C’s: BE CLEAR. BE CONCISE. BE CONVINCING.
BE CLEAR. Effective mediation memoranda are clear, use understandable language, proper sentence structure and grammar.
It is trite, but make sure there are no spelling errors.
BE CONCISE. Use short sentences to make the point. Stay away from prolix, convoluted language and long sentences and paragraphs. Use headings and short paragraphs to narrate the story and express positions. If you think you have 15 good points, prioritize them and only use your top 3 or 4.
Even if you are clear, if you are not concise, you may “lose” your reader and along with it, the opportunity to influence him/her.
BE CONVINCING. Connect the dots for the reader. Don’t make assertions or jump to conclusions without references to supporting facts, documents or law.
Use key documents, expert reports and other demonstrative evidence and law from your brief effectively. Quote sparingly from these sources. Do not misquote or quote out of context.
Mediation creates opportunities to think outside of the box, use one’s imagination and be creative – in ways that you may not be able to do at a pre-trial conference.
Make the narrative story and the advocacy of your client’s positions interesting, cohesive and compelling – i.e., convincing.
PREPARING YOURSELF AND YOUR CLIENT
Preparing yourself.
To prepare an effective mediation memorandum and brief, you must update your knowledge and assess the impact of new evidence, productions, experts’ reports and legal research. If a law clerk, articling student or a junior lawyer prepares a draft mediation memorandum or brief for you, review all of the underlying materials yourself. Good written advocacy on the part of mediation counsel requires a personal updating and appreciation of all aspects of the case BEFORE the mediation brief is delivered to the client, adverse parties and the mediator.
Preparing your client
In many cases, clients can be consulted to review drafts of your mediation memorandum and sometimes briefs. They may have questions, comments and criticisms that could improve the final product.
If possible, and if there is time, and in appropriate circumstances, the client should review the adverse party’s mediation brief. Knowing where the other side is coming from should help prepare your client for the actual mediation itself.
A day or two before the mediation, meet with the client, review all briefs, and develop a strategy for the overall mediation. Be realistic. At the end of the day, you should be prepared to compromise if you really want to settle the case at the mediation.
WHAT TO INCLUDE / NOT INCLUDE IN YOUR MEDIATION BRIEF
The mediation memorandum
The recommended sections of a mediation memorandum are as follows.
Overview. Describe the parties; nature of the proceeding; cause(s) of action / defences; damage claims / relief sought.
Background facts. These may incorporate or refer to a chronology of key events and documents.
Issues to be resolved.
Party’s positions on the issues to be resolved.
If plaintiff: a summary / detailing of the damage claims or relief sought
If defendant: a response to the plaintiff’s claims if not covered in (d)
Status of action
The mediation brief
The recommended sections of a mediation brief include:
The party’s mediation memorandum
Pleadings (if plaintiff)
Key documents (if a large production case, consult with adverse counsel to try and create a common key documents brief)
Experts reports
Relevant law – statutes, regulations, case law
In complex technical cases (for example, medical malpractice; product liability; commercial losses; construction), consider adding a “glossary of terms” to define and explain to a lay person the meaning of certain words and phrases involved in the case. The definitions used should be acceptable to experts in the field and not in dispute.
The brief should have a title page; an index or table of contents; tabs; pagination within tabs; a backing page. If more than one volume – so identify – eg. Volume 1 of 4, Volume 2 of 4 etc. Make sure the index is in the front of each volume and identify the volume number in the Index/Table of Contents.
What not (normally) to include in the mediation brief.
At the risk of unnecessarily dimming creativity, the following are a few items that I do not think add to the narrative in the mediation memo and/or could be left out of the mediation brief.
A recounting of prior settlement offers. See discussion below on this topic.
Signed witness’ statements (OK if they are signed by parties who are at the mediation)
“Will say” witness statements. These can’t be “tested” at the mediation; may be unreliable or misleading and counter-productive. May disclose something to the other side they didn’t know and/or shouldn’t know.
Full discovery transcripts. Often counsel in the narrative portion of their mediation memo summarize or quote discovery evidence and then footnote the page and question to authenticate. Assuming at least one counsel brings the full discovery transcripts to the mediation, I don’t think it is necessary to include the full discovery transcripts in the brief. They add bulk and may not be read in any event – on the assumption that the authenticating footnotes are accurate. If “zinger” passages from the discovery transcript are needed to make the point most effective in the mediation memo, by all means include the relevant Q’s and A’s from the discovery transcript in the brief.
In bodily injury cases, ALL of the medical reports, hospital charts and treating doctors’ clinical notes and records. The full medical record is often a waste of space, time and money for the purpose of a mediation. It is usually impossible to read or understand clinical notes and records. If certain clinical notes and records have to be included in the brief, have them “translated” by the clinician who wrote them. Hospital records may have little meaning in and of themselves without an expert report tying them in as to their relevance and importance. Be selective. Include only the reports, records and notes that best advance your client’s positions. Include only those notes that are required to support your experts’ opinions.
USE OF PRODUCTIONS / DEMONSTRATIVE EVIDENCE AT A MEDIATION
In order to better explain the narrative story and better enhance the party’s pitch in the narrative portions of the mediation memorandum, use effectively references to or quotes from key documents including letters, e-mails, photos, charts, graphs, tables, statements, drawings, summaries, sketches, notes and experts’ reports.
There is truth in the old adage that a picture is worth a thousand words.
Use technology – video (“a day in the life of……”), computer simulations and other similar aids. Check out the cost of creating these kinds of aids and confirm with your client first that they will pay for it. The effective use of technology can be expensive and the costs of producing same may not necessarily be recoverable from the adverse party even if you are successful in the suit.
Be sparing – not overwhelming. Only use the best example(s) of evidence speaking to the same point.
If evidence is extracted or summarized in the narrative in the mediation memo from some other document in the mediation brief, make sure the extraction or summary is accurate, not contradicted from within and not quoted or used out of context.
At the mediation, use movies/videos/computer simulations. Bring objects or products if relevant. Use graphs, drawings, sketches on the wall, on screens, on flip charts or white boards. Get everyone engaged and focused on your client’s issues and positions on those issues.
Effective use of visual aids often creates a much clearer understanding of the issues and a party’s positions on those issues than just reading about it in a brief or hearing about it from counsel or a party at a mediation.
HOW MUCH TO SAY ABOUT SETTLEMENT / PRIOR OFFERS
Generally speaking, as a mediator I don’t like to see references in a mediation memo or brief to prior settlement discussions or offers. In my view, they limit, confine and constrict the parties’ potential openness and flexibility to achieve settlement at a mediation.
This is different than outlining a party’s positions on damage claims – discussed above.
Leave out the previous “tooing and froing”. Let creativity and imagination in. Think outside of the box.
Don’t close off settlement possibilities unnecessarily or prematurely by wedding your client’s settlement position(s) to (a) prior rejected offer(s).
If the mediator wants to know if there have been any prior offers in any given case, let him/her ask at the mediation.
CONCLUSION
Hopefully these remarks have achieved their stated purpose: to provide counsel with practical tips and suggestions in the preparation of “winning” mediation memoranda and mediation briefs.
Always take advantage of the opportunity to advance your client’s case with effective written advocacy.
And remember. BE CLEAR. BE CONCISE. BE CONVINCING.
Peter R. Braund, B.A. (Hons.), LL.B., LL.M.
York Street Dispute Resolution Group Inc.
June 4, 2012
H. APPENDICES
Rule 24.1.10: Procedure Before Mediation Session and
Rule 24.1.16: Consent Order For Additional Mediation Session
Form 24.1.C: Statement of Issues
Rule 50.04: Materials to be Filed (at a Pre-Trial Conference) and
Rule 50.11: Documents to be Made Available
4. Commercial Mediation Act, 2010, S.O. 2010, C.16, Schedule 3
