Why Mediation Briefs Fail and How to Make Them Work

If mediation is meant to provide a genuine opportunity to resolve disputes, why do so many mediation briefs read like pleadings and offer little value to the process? This article examines the pitfalls of current practice and offers practical guidance on how to make briefs work as genuine tools of persuasion for counsel.

Mediation briefs are meant to advance settlement. Yet too often, they do the opposite. Instead of opening space for dialogue, they entrench positions. Instead of persuading the other party, they restate pleadings which can inflame an already tense situation.

Why do so many briefs fall short? In part, because they are treated as routine documents, copied from litigation files, filled with legal argument, and submitted at the last minute. This approach overlooks the potential of mediation briefs as powerful tools for encouraging resolution, resulting in missed opportunities.

A well-written mediation brief is not just administrative housekeeping. It is an advocacy tool with the power to shape negotiations and build credibility. Used thoughtfully, it can turn a mediation from a procedural step into a genuine path to resolution.

The primary purpose of a mediation brief is persuasion. While it provides context for the mediator, its most important audience is the other party. Your brief has the power to influence their perception and understanding of the dispute.

Since mediators cannot impose an outcome, a brief should be viewed as an advocacy tool directed toward the other side. It should:

• Clarify your client’s goals and interests.
• Present a persuasive, credible narrative.
• Help the mediator with insights into both the substance of the dispute and which mediation process is most likely to be the most effective for the parties.

A brief that focuses solely on legal positions is unlikely to move the dispute forward. As one previous Slaw commentator, John-Paul Boyd noted in the context of family law, a brief can sometimes entrench clients in their positions rather than open them to dialogue. Is that what you want?

While law may frame the dispute, it often is only one part of the solution. A brief that explores business realities, relational concerns, or broader interests has a much greater chance of encouraging the other party to consider settlement options.

It is called a brief, so make it as short as possible. Lengthy repetition of the pleadings in a case rarely helps. Instead, tell a clear, factual story that identifies the issues, highlights the interests, and opens space for constructive dialogue.

Credibility matters. A brief that candidly notes weaknesses and recognizes the strengths of the other side often persuades more effectively than one that ignores them. Honesty can build trust and encourage reciprocity.

Attach essential evidence you intend to rely on, not just relevant evidence, and expert reports unless strategic reasons dictate otherwise. Limit case law to decisions that truly matter.

A few simple steps will make your brief far better than average. Watch out for these traps:

• Cut and paste pleadings: Avoid. The other side has already seen them. They do very little, if anything, to advance the conversation.
• Legal argument overload: Mediation is not adjudication. Legal rights matter, but interests are what drive resolution.
• Late delivery: A last-minute brief deprives the other side—and their client—of the chance to reflect. It also prevents the mediator having the time to hold a call with counsel before the morning of the mediation if at all.

As an example, in a recently mediated dispute, both briefs were essentially copied pleadings. Each side repeated arguments that the other had heard for months, and neither addressed the underlying business concerns. The mediation stalled until the issues were reframed in terms of interests rather than legal positions. In contrast, a successful mediation brief in a different case presented a clear, factual story that identified the issues, highlighted interests, and opened space for constructive dialogue.

An earlier Slaw article by Michael Erdle on the Cost Consequences of a Failure to Mediate clearly illustrates the risks of poorly thought out positional briefs that make it look like you have little or no intention of settling.

As most mediation briefs are now in electronic format, accessibility matters:

• Use hyperlinks to case law and evidence.
• Ensure formatting is user-friendly.
• Avoid technical clutter that obscures the message.

There is also a significant tactical opportunity here. Visuals, such as timelines, charts, and graphics can make briefs far more effective, particularly in complex disputes. For more detail, see Kerri Salat’s article in Slaw, the Effective Use of Visual Aids in Mediation

In the United States, mediation briefs are often confidential and are seen only by the mediator. Their purpose is primarily to inform the mediator and frame the dispute resolution process. In the UK, ‘position papers’ are routinely exchanged, making them advocacy documents designed to influence the other side from the outset.

Ontario sits somewhere in between. In hybrid processes like med-arb, counsel must be especially careful if drafting their briefs for the mediation phase. There is a real concern that what is said in mediation may influence the arbitrator’s later decision-making. While this is unlikely as experienced med-arbitrators will remain open to persuasion and must deliver an award based on the evidence in the arbitration phase, not just the information in the mediation, it is important to draft the mediation brief even more carefully. For more on this see another Slaw article by Michael Erdle, Med-Arb: Efficiency vs. Justice?

Most mediators like to hold a short conference call with counsel after briefs are exchanged. Do not see this as a waste of your time. These calls:

• Clarify the issues in dispute.
• Explore what style of mediation best suits the case.
• Provide the mediator with insight into party dynamics and counsel’s relationship with each other.
• Help identify barriers before the session begins.

In one recent mediation, a short pre-mediation call revealed that one party had a deep concern about confidentiality that had not been surfaced in prior negotiations. Addressing it before the session began helped build trust and prevented the mediation from derailing at the outset.

If a call cannot be arranged, suggest that you can arrive 30–60 minutes early on mediation day for a similar conversation.

It is surprising how little has been written in depth about the value of these pre-mediation calls.

Counsel often do not want to disclose prior settlement efforts in briefs or even in a conference call. Unless there is a compelling strategic reason not to, such disclosure helps the mediator understand the negotiation context. A mediator cannot impose outcomes; so, candour generally supports, rather than undermines, the process.

There is a fine line between persuasive advocacy and overstatement. Overly one-sided briefs can undermine both the lawyer’s and the client’s credibility. In another case, counsel candidly acknowledged in their brief that their client faced litigation risks if the matter went to trial. That honesty not only enhanced credibility with the other side but also encouraged a reciprocal openness that made settlement possible.

The Raichura v. Jones case, discussed in Deanne Soeter’s Slaw article, A Warning Not to Bully a Client into Settlement reminds us of the potential consequences that inadequate preparation and overzealous advocacy can expose counsel to liability.

How we prepare mediation briefs has both value and consequences beyond individual cases. Effective briefs promote candour, credibility, and early settlement. Ineffective ones entrench positions, waste time, and risk undermining the role of mediation in reducing trial backlogs. They can also lead to increased costs, prolonged disputes, and a loss of trust in the mediation process.

Mediation briefs fail when they are treated as litigation documents in disguise. They work when they are concise, candid, and directed to the right audience—the other party. To achieve this, focus on the key issues, avoid legal jargon, and ensure the brief is tailored to the specific dispute and the other party’s interests.

A good brief does more than summarize facts and law. It clarifies interests, acknowledges risks, and provides the mediator with the context needed to guide the process. Most importantly, it has the potential to persuade opposing counsel and their clients to consider litigation risk and settlement seriously.

The takeaway is simple: treat mediation briefs with the same care as a pre-trial memorandum, but with a different mindset. They are not about winning in court; they are about encouraging resolution.

If counsel can shift perspective in this way, mediation briefs can become powerful tools of persuasion and collaboration. That is how they should work.

How do you see the role of mediation briefs in your practice? Are they advocacy documents, opportunities for collaboration or just a procedural hurdle?