There are some big differences between appellate mediation and mediation while your case is still pending in the trial court. But appellate and trial lawyers can both benefit from reading mediator Rande Sotomayor’s excellent article, “Effective Mediation Briefs,” in this month’s California Lawyer. I know Rande through my networking group, The Esquire Network (there’s my full disclosure), and have seen her present on other topics. I know her to be a very thoughtful mediator, and it shows in this article.
What I found particularly persuasive was her advice that lawyers should get over their penchant for keeping the entirety of their mediation briefs confidential:
Many lawyers submit “confidential” briefs to the mediator, hoping to avoid premature disclosure of their position. But if the brief is confidential, how can the information impress the folks sitting across the table?
A productive strategy is to deliver the message ahead of time, thereby promoting a worthwhile – and mutual – premediation evaluation of the case.
This approach conveys not only your (hopefully) winning arguments, but also what it will take to persuade your client to settle. Sharing a thoughtful brief in advance also allows everyone to discover unanticipated areas of agreement. Then, the parties can drill down to the real areas of disagreement at the heart of their dispute.
A lot of lawyers are going to have a problem with this advice, out of fear that the adverse party will approach the mediation as a chance to learn how best to manage the case rather than as a meaningful effort toward settlement. You can mitigate the chances of this by making your mediation brief effective in other ways (more tips on that in the article).
Lawyers may likewise fear tipping off the other side even if they are confident the other side is engaging in mediation in good faith. But is there any real danger here? Any opposing counsel worth his salt is going to figure out the bulk of your strategy anyway, either through papers filed during the course of the litigation or through effective discovery:
An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.
(Code Civ. Proc., § 2030.010, subd. (b).) Similar information can be obtained through requests for admissions. (Code Civ. Proc., § 2033.010.) Unless you plan to stonewall or be cagey in discovery — or your opposing counsel is not sharp enough to utilize all the discovery tools at his disposal — you are not going to keep your strategy a complete secret anyway.
I think the advice to disclose one’s position goes double for appellate mediation, especially for the appellant. The appellant might have been on an equal footing with the respondent during the trial court proceedings, but with statewide reversal rates hovering around 20%, the appellant starts out as a huge underdog in the appeal. The appellant’s most important task during the mediation is to convince the respondent that the appellant’s chances of succeeding are far higher than that 20% average. An appellant can’t do that without disclosing at least some of his strategy. I don’t worry about giving the respondent additional lead time to consider those arguments before my appellant’s opening brief is filed. The easy availability of extensions and the “grace period” for filing the respondent’s brief is going to give the respondent plenty of time in any event.
Rande’s piece has a lot of great tips. Read it
for advice on how to communicate with the mediator and the adverse party, through your mediation brief and otherwise.