What AAA Rules Say About
Mediation Briefs
By: David S. Riddle, P.E., Guest Author and Bricker & Eckler Construction Law Fellow
Reprinted from October 2006 ohioconstructionlaw.com
Last month we detoured
slightly from our examination of the American Arbitration Association’s rules for Construction
Industry Mediation Procedures to look at an interesting new case.
This month we return to the Rules, particularly Rule M-9 that covers mediation briefs.
The Mediation Brief (Position Statement)
What is a mediation brief? A mediation brief, sometimes referred to as a “position statement,”
presents the party’s position with regard to the issues that need to be resolved.
A good mediation brief will typically consist of at least four sections:
Introduction: This should be a short and concise statement that captures the essence of the
dispute to provide the mediator with an instant point of reference.
Factual Background: Less is more. Tell your story, but remember you are not
trying to present your entire case.
Contentions, Analysis and the Law: While the law is important in resolving
construction disputes, it is probably less important than the facts and the realities of what
may happen if the dispute is not settled. However, if there is a point of law that can potentially
determine the outcome, it is worthwhile to introduce it in the position statement.
Conclusion: Think of this as your final opportunity to drive home your themes.
For a more detailed description of how to prepare the mediation brief,
see Preparing for
Success in Mediation – Part III: The Position Statement from the February 2004 issue of ohioconstructionlaw.com.
What the Rule Says About Briefs
Under Rule M-9, the parties must submit mediation briefs to the mediator at least 10 calendar
days before the first scheduled mediation session. The mediator may decide whether the briefs
should be exchanged by the parties. This decision should be announced before the
briefs are submitted, so no one will be surprised by having what he thought was a confidential
brief shared with the opposition.
Should the parties want to exchange briefs? The short answer is yes, in most cases.
A common complaint by attorneys involved in construction mediation is a lack of preparation
by the opposing party. The opposing attorney will often appear at mediation with only a
vague understanding of the issues in dispute and an unrealistic hope that the mediator will
somehow convince the opponent that it has no hope of prevailing. Sometimes attorneys
will attend the mediation to fish for information. Either approach is not likely to
result in a positive outcome for the mediation. By exchanging mediation briefs, the parties and
their attorneys have a better opportunity to understand each other’s position.
Without exchanging the briefs, parties are likely to show up at the mediation with
only one side of the story—theirs. For the mediation to proceed successfully, the mediator
must take time from the mediation to educate both sides. This time could be better spent on
resolution and dialogue about the issues, rather than simply educating each other. If the issues
involved are complex, no party will have sufficient time during the mediation to process the information
and make informed decisions.
There is also another possibility: producing two versions of the same brief, one
for the mediator and one for everyone else. Such an option makes it possible to open up to the
mediator about certain aspects of the case that you might prefer not to discuss with the opposition.
If the parties and the mediator agree to this approach, it should be decided and announced before
any briefs are submitted.
Some Advantages of Mediation Briefs
Attorneys do not have a corner on being unprepared for mediation. Their clients must also
show up at mediation prepared. Reading the opponent’s mediation brief is a good way for a party to prepare
for the mediation. Before the mediation, the parties should develop answers to two questions:
First, they must focus on why they should resolve their dispute.
Many parties enter mediation focused strictly on what they want out of the mediation,
rather than why they want it. If the parties step back and develop the underlying reasons for
what they want, the parties will be in a better position to find ways to address them.
Second, they need to ask themselves this—What is the alternative if we cannot reach a resolution?
In Getting to Yes: Negotiating Without Giving In, Roger Fisher and William Ury sum up the
importance of understanding your best alternative:
The reason you negotiate is to produce something better than the results you can obtain without negotiating.
What are those results? What is that alternative? What is your BATNA—your Best Alternative To a Negotiated Agreement? That is the standard against which any proposed agreement should be measured.
A party who knows only his own side of the story cannot realistically evaluate why the dispute
should be resolved or what his own BATNA might be. Reading the mediation brief submitted by the opposition and really trying to understand how the other party sees the dispute can go a long way toward preparing for a mediation that will not be a waste of anyone’s time.
The Construction Industry Arbitration Rules and Mediation Procedures are flexible enough to allow for adjustments based on the particulars of the dispute, but they also are specific enough to provide a basic framework to resolve a dispute. In our examination of the Rules, we have covered the what, who, where, when, and how of mediation. In future columns, we will continue our examination by looking at the remaining miscellaneous but important rules concerning, among other things, termination, the liability of the mediator, and responsibility for expenses.
