Mediation Brief

Confidential Mediation Brief

CONFIDENTIAL MEDIATION BRIEF — NOT FOR FILING OR SERVICE ON OPPOSING PARTY
Protected from Disclosure Under Fed. R. Evid. 408 and Applicable ADR/Mediation Privilege Rules

HEADER

Case Name: [________________________________] v. [________________________________]
Court / Tribunal (if applicable): [________________________________]
Case No.: [____________________]
Mediation Date: [__/__/____]
Mediator: [________________________________]
ADR Provider (if applicable): ☐ AAA ☐ JAMS ☐ [Other: [________________________________]]
Submitted By: ☐ Plaintiff/Claimant ☐ Defendant/Respondent ☐ Third Party: [________________________________]
Submitted to: ☐ Mediator Only (Confidential) ☐ All Parties (Joint Statement)
Date Submitted: [__/__/____]

Drafter's Note — Joint vs. Confidential Brief:
- Joint brief: Shared with all parties and the mediator. Focuses on agreed facts, legal framework, and areas of agreement. Avoids revealing settlement authority or confidential assessments. Best for cases where the parties want to build common ground before the session.
- Confidential brief to mediator only: Contains your settlement authority, BATNA/WATNA analysis, client's true interests, and sensitive information you want the mediator to know but not share with the other side. Most mediators prefer confidential statements. Always check the mediator's preference.

SECTION 1: INTRODUCTION AND PARTIES

1.1 Overview of the Dispute

This mediation brief is submitted on behalf of [________________________________] ("Client") in connection with the above-referenced dispute. This matter involves [one-paragraph description of the nature of the dispute that would orient a mediator who may be unfamiliar with the case]:

[________________________________]

1.2 Counsel and Representatives

Submitting Party: [________________________________]
Counsel: [________________________________], [Firm: [________________________________]]
Client Representative Attending: [Name: [________________________________]], [Title: [________________________________]]
Settlement Authority: Client representative has authority to settle this matter. [Specific authority disclosed separately in confidential statement / Authority is $[________________________________].]

Opposing Party/Parties:
| Party | Counsel | Expected Representative |
|-------|---------|----------------------|
| [________________________________] | [________________________________] | [________________________________] |
| [________________________________] | [________________________________] | [________________________________] |

SECTION 2: FACTUAL BACKGROUND

Note: Write this section as an objective, balanced factual narrative that a mediator unfamiliar with the dispute can quickly absorb. Advocacy comes later; begin with facts that both sides would largely agree on, then identify the disputed facts.

2.1 Background and Relationship of Parties

[Describe who the parties are, how they came to be in a relationship, and the basic context of the dispute. Avoid excessive advocacy in this section.]

[________________________________]

2.2 Chronology of Key Events

2.3 Key Documents

The following documents are central to understanding this dispute (copies of the most important [____] documents are attached as Exhibit [____]):

SECTION 3: LEGAL THEORIES, STRENGTHS, AND WEAKNESSES

3.1 Claims and Legal Theories

Our Client's Claims (if Plaintiff/Claimant):

Our Client's Defenses (if Defendant/Respondent):

3.2 Strengths of Our Case

1. [Strength 1]: [________________________________]. Supporting evidence: [________________________________].
2. [Strength 2]: [________________________________]. Supporting evidence: [________________________________].
3. [Strength 3]: [________________________________]. Supporting evidence: [________________________________].

3.3 Weaknesses and Vulnerabilities of Our Case

(Include this section in the confidential brief to the mediator only — do not include in a joint statement or brief shared with opposing counsel.)

1. [Vulnerability 1]: [________________________________]. We address this weakness by [________________________________].
2. [Vulnerability 2]: [________________________________]. Opposing counsel will argue [________________________________]; our best response is [________________________________].
3. [Vulnerability 3]: [________________________________].

3.4 Anticipated Defenses / Counter-Arguments from Opposing Party

SECTION 4: DAMAGES ANALYSIS

Tip: A well-organized damages table is one of the most persuasive sections of a mediation brief. Attach supporting documentation.

4.1 Economic Damages

4.2 Non-Economic Damages

4.3 Enhanced or Punitive Damages

4.4 Attorney's Fees and Costs

4.5 Total Damages Summary

4.6 Offsets and Reductions

SECTION 5: PRIOR SETTLEMENT DISCUSSIONS

5.1 History of Negotiations

5.2 Why Prior Negotiations Stalled

[Describe the key breakdown points: e.g., gap in damages evaluation; dispute over liability; coverage issues; emotional factors]:

[________________________________]

5.3 Changed Circumstances Since Last Negotiation

[Describe any new information, rulings, discovery, or changed facts that may affect the settlement calculus]:

[________________________________]

SECTION 6: CLIENT'S TRUE INTERESTS AND GOALS

(This section is typically included in the confidential statement to the mediator only. It goes beyond legal positions to identify what the client truly needs from a resolution.)

A mediator is most effective when they understand not just the client's legal position, but the underlying interests that drive it. For this client, the most important interests are:

☐ Monetary compensation — Client's primary goal is adequate financial recovery to cover [losses / future needs / business impact].
☐ Vindication / acknowledgment — Client wants the opposing party to acknowledge [wrongdoing / error / the harm caused].
☐ Apology — A meaningful, private or public apology from [________________________________].
☐ Confidentiality — Client has strong interest in keeping the dispute and any resolution confidential, particularly because [________________________________].
☐ Business relationship preservation — The Parties have an ongoing relationship that both wish to preserve. Settlement should include [terms protecting future dealings].
☐ Injunctive / non-monetary relief — Client seeks [policy change / cessation of conduct / compliance program / return of property: [________________________________]].
☐ Speed of resolution — Client prioritizes a quick resolution over maximizing recovery because [financial stress / legal costs / management distraction: [________________________________]].
☐ Closure — Client wants to move forward and minimize continued emotional or reputational exposure.

SECTION 7: BATNA / WATNA ANALYSIS

(Best Alternative to Negotiated Agreement / Worst Alternative to Negotiated Agreement — include in confidential statement to mediator only.)

7.1 BATNA (Best Alternative to Negotiated Agreement)

If this mediation fails and the case proceeds to trial:

• Best case verdict (if we win on all claims): $[________________________________]
• Probability of full win at trial: [____]%
• Expected value of full win (probability-adjusted): $[________________________________]
• Estimated time to trial verdict: [____] months / years
• Estimated additional litigation cost: $[________________________________]

Net expected value of going to trial (best case): $[________________________________] minus $[________________________________] in costs = $[________________________________]

7.2 WATNA (Worst Alternative to Negotiated Agreement)

• Worst case outcome at trial (if we lose): $[0 / adverse judgment of $[________________________________]]
• Probability of total loss: [____]%
• Expected cost of losing (including fees and adverse judgment): $[________________________________]
• Reputational/business impact of public trial: [describe]

7.3 Settlement Range

Given the BATNA/WATNA analysis:

• Minimum acceptable settlement (Plaintiff): $[________________________________]
• Maximum authorized offer (Defendant): $[________________________________]
• Target settlement: $[________________________________]

SECTION 8: PROPOSED RESOLUTION

8.1 Monetary Terms

Our client proposes to resolve this matter for:

☐ Lump sum payment of $[________________________________], due within [____] days of settlement.
☐ Structured payment of $[________________________________] over [____] months/years as follows: [________________________________].
☐ Structured settlement (annuity) providing [describe terms].

8.2 Non-Monetary Terms

In addition to monetary relief, the settlement should include:

☐ [Mutual / one-way] release of all claims arising from the Dispute.
☐ Confidentiality / non-disclosure clause.
☐ Non-disparagement clause (mutual / one-way).
☐ [________________________________] (injunctive or equitable relief).
☐ Neutral employment reference language: "[________________________________]"
☐ Return / destruction of [documents / property / confidential materials].
☐ Other: [________________________________]

SECTION 9: SPECIFIC REQUESTS TO MEDIATOR

We ask the mediator to assist with the following:

1. ☐ Reality-check the opposing party's damages evaluation, particularly their [overestimate / underestimate] of [________________________________].
2. ☐ Communicate to the opposing party that [________________________________].
3. ☐ Bridge a gap of approximately $[________________________________] between the parties' current positions.
4. ☐ Explore the possibility of non-monetary terms that could reduce the monetary gap.
5. ☐ Address the following specific obstacle to settlement: [________________________________].
6. ☐ Conduct separate caucuses to [________________________________].

SECTION 10: KEY EXHIBITS ATTACHED

Respectfully submitted,

[________________________________]
[Attorney Name]
[Bar No. [____]]
[Law Firm]
[Address]
[Phone: ([____]) [____]-[____]] | [Email: [________________________________]]
Counsel for [________________________________]

Dated: [__/__/____]

REMINDER: This brief is confidential. It is protected from disclosure by Fed. R. Evid. 408, applicable state mediation privilege statutes, and the parties' Mediation Agreement. Do not file this document with any court or serve it on opposing counsel unless so directed.