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.

 

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