What if I don’t exchange my mediation brief?

Some lawyers tell me, “I don’t want to exchange briefs,” but I think that’s generally a bad idea.  Why? Because if you don’t exchange yours, you won’t get the other side’s and you do want to know what their theories are, don’t you?  Wouldn’t you be embarrassed if their brief emphasized a theory of recovery or defense that you had not taken seriously before and perhaps had not mentioned to your client?  So exchange your brief and share the other side’s brief with your client, well in advance of the session.  Send the mediator separately what you want to be confidential.


What if… It’s early in the case—should I agree to mediation anyway?

Some lawyers think that mediation is worthwhile only if they can get to settlement, but not all cases are like that.  Even if it’s early, if the other side proposes it, you can gain from mediation like this:  Figure out what you want to get from the other side, and ask for that as a condition to mediating.  Maybe you want certain documents produced, or a deposition scheduled.  If they agree, you win either way—either you settle the case by mediating or if not, you will gain information that you might otherwise not have.