Mediation Brief and Exhibit Guidelines
A mediation is only as effective as the information you provide me.
Briefs that merely repeat the pleadings, or omit a candid assessment of the case, are of little use. Use your brief to identify the issues that matter, explain the strengths and weaknesses on both sides, and give me what I need to run an informed, productive session.
01 Submission
Where and When to Send Your Brief
Please send your brief and exhibits to kyle@kdsmediations.com at least one week before the session. If you need more time, let me know in advance.
Your brief is confidential. I don’t share them with opposing counsel unless you ask me to, though I do encourage the voluntary exchange of briefs.
02 Format
Formatting Your Brief and Exhibits
- Keep the brief to about ten pages, not counting exhibits.
- Submit a single PDF, with exhibits tabbed, labeled, and paginated. Screenshots or single images are fine to embed where they help the narrative.
- Flag any document you consider especially significant, and explain why.
03 Contents
What to Include
These items give me what I need to prepare. Not every point applies to every case, but most briefs benefit from addressing each one.
Attendance and Authority
Who will attend and their roles, with confirmation that a person with full settlement authority will be present.
Contact Details
For each attorney attending, an email address and cell phone number, in case we need to text or exchange documents during the session.
Procedural History
A short statement of where the case stands procedurally.
Facts, Evidence, and Defenses
An in-depth discussion of the issues at stake, with a claim-by-claim analysis where it helps.
Negotiation History
The current demand and offer, along with the full history of negotiations to date.
Candid Case Assessment
Your honest read on liability, damages, and litigation risk.
Critical Settlement Terms
Any terms beyond the number that will matter to a deal.
Novel Arguments
An explanation of any new or unusual arguments or theories you intend to raise.
Outside Considerations
Non-case issues that bear on settlement, such as liens, bankruptcy or ability-to-pay concerns, or tax treatment.
04 Single-Plaintiff Matters
Cast of Characters and Timeline
In cases that turn on the conduct of several people, which describes most discrimination, harassment, retaliation, and wrongful-termination matters, two short tools make your brief easier to follow and your facts easier to credit. Keep both to a single page; their value is orientation, not exhaustiveness.
Cast of Characters
A brief list of the key people and their roles, noting for each why they matter: decisionmaker, alleged wrongdoer, witness, or comparator. For example:
- Plaintiff: [name], [title], employed [dates]
- [Name]: Plaintiff’s direct supervisor; alleged harasser
- [Name]: HR representative who received and investigated the complaint
- [Name]: Vice President; decisionmaker on the termination
- [Name]: Plaintiff’s coworker; corroborates (or disputes) the key incident
- [Name]: Comparator outside the protected class who engaged in similar conduct but was not disciplined
Timeline
A simple chronology of the events that matter, in date order. A timeline is most useful when it surfaces the sequence between protected activity and the adverse action, since that proximity often drives the causation analysis. For example:
- [Date]: Hired as [title]
- [Date]: Most recent positive review, raise, or promotion
- [Date]: Protected activity or onset of protected status (complaint to HR, leave request, disability or pregnancy disclosure)
- [Date]: First adverse treatment (write-up or PIP)
- [Date]: Adverse action (termination)
- [Date]: Replacement hired or comparator retained
- [Date]: CRD complaint filed; right-to-sue issued
- [Date]: Complaint filed
05 Class & PAGA Matters
Additional Information to Include
For class and PAGA matters, please also address the following, to the extent the data is available.
Class and Group Definition
The definition of the putative class and the aggrieved employee group.
Workweeks and Pay Periods
The number of workweeks and pay periods at issue.
Periods and Headcount
The class period, the PAGA period, and your estimate of the number of class members and aggrieved employees.
Separations
The number of class members whose employment has ended.
Rates of Pay
The average base hourly rate and the average regular rate of pay.
Damages and Penalties Model
Your model, with the key assumptions and inputs behind it.
Certification Status
Where class certification stands, along with any related motions.
Prior Proceedings
Any prior mediation, settlement discussions, or related actions.
Questions
Questions about Your Brief?
Email your brief when it’s ready, or call or text me with any questions along the way. I look forward to working with you to resolve this matter.