Saturday, July 27, 2013

The Genius of a well crafted Mediation Brief

     I have always loved the written word.  I still write handwritten notes and just purchased a beautiful new pen for signing autographs of my book.  So I appreciate a well-constructed, clear, concise and abbreviated legal analysis in a brief in advance of the mediation.  As with most busy mediators, I read the briefs on the weekend and hope that the details will stick with me on the day of the hearing.  The more evidence that can be clearly highlighted, the happier I am to begin the negotiation with a real understanding of the legal points of contention as well as the facts leading up to the dispute.  It is, in my opinion, also an excellent way for the lawyers to be sure that they cover every salient detail and fully understand the contentions being made by their clients.

Yesterday's hearing was more about the evidence that had NOT been yet produced, than that which had.  In other words, the Plaintiff's brief was accompanied by email correspondence between the former manager and the Human Resources Department that had been obtained by the Plaintiff during his medical leave of absence and in preparation for an administrative hearing which took place long before the lawsuit was filed.  There were declarations by former employees whose Depositions had not been taken.  And there were Proofs of Service and a Notice of Default which had been taken by Plaintiff against the store manager who had seemingly disappeared and become unavailable to testify about her claim that the Plaintiff had committed a theft, thereby justifying his immediate discharge on the day he returned from medical leave.  On the other side, there was a clear reliance upon the testimony of this former manager, who had not yet appeared, was not being defended by the Defendant, and may even have been in default.  It made the allegation that the Plaintiff was terminated indisputably "for cause" a bit less credible.

Always take the time to review your entire file, consider all of the evidence which you have gathered and all that you have not, and lay out the best of your contentions in a written brief for the mediator, at least the week before your hearing.  You will be glad to have an ally who is familiar with your case if you've taken the time to adequately prepare her.