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Employment & Labour, Mediation

Mediator offers tips for writing compelling briefs

Mediation briefs should be written for their intended audience, and that's the mediator, not the client or the opposing lawyer, says Toronto employment mediator and arbitrator Barry B. Fisher.

Fisher, principal of Barry Fisher Arbitration & Mediation, says lawyers often craft briefs to impress their clients, or as an attempt to show the other side they haven't a chance to win.

"The classic theory is that you're writing for the other side's client, showing how good you are, that you're so much better and therefore they should capitulate," he tells AdvocateDaily.com.

Instead, he says the first task is to identify the true audience of the brief, the person who should be influenced by the three- to four-page paper, and that should be the mediator, Fisher says.

"I think that's the best way to write because you want the mediator to go into it with a positive view of your case," he says.

He says mediation is compulsory for civil matters in Toronto, Ottawa and Windsor. It was launched as a pilot project in 1995 and adopted permanently after it proved to help resolve disputes and divert cases from the court system.

"The mediation brief is required under the rules in a certain format, but it's also good practice for the lawyers involved, otherwise the mediator is walking in without a clue about the issues," Fisher says.

"It provides an opportunity for each side to set out their case," he says. "You want to influence the mediator into thinking your case has the most merit and strength and the other person's case has weaknesses, therefore you should get a better deal."

Fisher says once lawyers acknowledge they're writing for the mediator, they should "then lay out the basic facts of the case."

He says he uses a school notebook for each case and on the first page is the case summary, with dates of hire and termination, the age, the plaintiff's position, the person's compensation package and severance pay.

"And then I list the issues," Fisher says. "The common issues include: did the employer have just cause, was there an employment contract that limits the person's entitlement, was there reasonable notice, have they looked for another job — and there are many other possible issues."

He says some lawyers present the information in point form, which may be efficient, but it can also “sterilize the case."

Others use a narrative form. "That's what I used to do when I practised as a lawyer," he says.

"You've got to remember a mediator is not an American jury, we've heard it all, but that doesn't mean we've been desensitized to the human drama or need it rammed down our throat," Fisher says. "I recommend lawyers avoid adjectives and adverbs.

"Tell me what happened. Give me information, not conclusions," he says. A recent brief Fisher received specifically noted dates and what occurred, and that made him focus on the issues in the case.

"The cardinal sin of a poor brief is repeating the statement of claim in the pleadings," he says. "Tell me the story in the fashion you want and make it persuasive without whining."

Lawyers should write briefs that are compelling, outlining the facts in a straightforward manner, Fisher says.   

"Don't avoid obvious issues," he warns. "The core part of the case is if the person was fired for just cause, and it’s not helpful if the plaintiff ignores that issue and focuses solely on the damages. And then I open the employer's brief, for example, and the case is about theft and here's the evidence and the person's excuse.

"Does the plaintiff think it's going away if they ignore it?" Fisher asks. "No. Put it front and centre. The first paragraph of the brief should be something like, 'This case is all about whether my client stole from the employer.'"

Indeed, he says lawyers should focus on the legal issues at stake in the case.

"A lawyer who doesn't know what the critical issues are doesn't know his case," Fisher says. "The brief should be written to persuade and, depending on who the mediator is, you may not need to attach cases to support your position. I don't need to be told about much law.

"I need to know what the legal issues are," he says. "As a mediator, I help the parties evaluate the strengths and weaknesses of their case."

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