Family Law

Family Law News Issue 2, 2021, Volume 43, No. 2

Developing Your Powerful Mediation Brief

Justin O’Connell, CFLS

Justin M. O’Connell is a partner at Cavassa O’Connell, located in Monterey, California, where his practice includes family law and civil litigation. Mr. O’Connell is a Certified Family Law Specialist, served as a Commissioner on the California State Bar Family Law Advisory Commission from 2012 to 2015, and is currently the Legislation Chair of the California Lawyers Association Family Law Executive Committee (FLEXCOM). He has been the professor of Property Law at the Monterey College of Law since 2007, and a member of the Alternative Dispute Resolution Executive Committee for the Monterey County Superior Court since 2013.

Attorneys train and prepare for hearings and trials but, all too often, the same level of work, attention, and skill are not applied to prepare for mediations. Some of the preparation for mediation is working with the client to develop a plan and settlement objectives. Some of the preparation is for what will occur during mediation. But a significant amount of preparation should center on the mediation brief (sometimes called a mediation statement). The brief is where an attorney explains the client’s position and why the client should obtain its goals. The brief can make a lasting, impactful impression on the attorney’s client as well as on the opposing counsel and the opposing party. Yet, many attorneys overlook the importance of developing a powerful mediation brief.

The composition of mediation briefs sometimes appears as routine, last minute, canned outlines filled with acrimonious tone but sparse on meaningful discussion. Such briefs are often accompanied by exhibits galore that appear to be a replacement for the attorney work product, appearing as the equivalent of stating, "See attached—figure it out." However, drafting mediation briefs with due skill and thought is critical. The mediation brief usually provides the only opportunity to indirectly address the opposing party. The mediation brief can persuade a shift in settlement position, whereas a trial brief is designed to persuade an absolute outcome.

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