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Crafting an effective mediation summary: tips for written mediation advocacy.

Sheldon J. Stark

Introduction

Your written mediation summary is a crucial communication. To your mediator it shows your talents, expertise and preparation. To your client it shows your persuasive powers, serving as a reminder of all the reasons they hired you. To your opponents it demonstrates you have a good story to tell, compelling evidence to back it up and the skill required to persuade judge or jury, should the case fail to settle at the mediation table. I believe the most important audience is the later. The party needing the most convincing is your opposing party and her counsel. Mediation summaries offer a unique opportunity to craft precisely the message you wish to send the other side - without interruption, confident it will be read. A written summary designed to influence the decision making process on the other side can move the dispute a long way toward settlement.

What follows are my suggestions for producing a more cogent, persuasive and effective mediation summary. If your goal is to save time or money, of course, feel free to re-use your dispositive motion papers, your case evaluation submission or other written materials. If your goal is to make the most of mediation, however, I encourage you to prepare a written summary individually tailored to the mediation process for your specific and unique dispute.

An Effective Mediation Summary Tells a Good Story

Tell a story: In many cases, your mediation summary will be the first exposure the other side will have to your theories and claims in a single, coherent narrative. Tell your story in as persuasive and compelling a fashion as you can. We are moved by good stories. Some say we are hard wired to hear and respond to good stories. The most effective trial lawyers are good story tellers. There’s a reason tens of thousands of new novels are published every year. We sympathize and relate to the participants in a good story. Your mediation summary should be a good story, well told. Why did plaintiff bring this case? Why did defendant take the actions complained of at the heart of the suit? Humanize your clients and help us understand who they are and why they acted or reacted as they did.

Build the story around a theme: The best stories revolve around universal themes. There are many articles and books available on developing a litigation theme, so I won’t spend a lot of time on this aspect of storytelling, but time spent in crafting a compelling theme is time well spent. Examples of commonly recurring themes include:

• “No means no.”
• “They didn’t follow the rules.”
• “Hell hath no fury like a woman scorned.”
• “Personal responsibility.”
• “They didn’t keep their promise.”

It’s a form of settlement brochure: Mediation summaries are not written to “win” the case in the same way Motions for Summary Judgment are written. There will be no resolution at mediation unless the other side agrees to settle. The mediation summary is written therefore as a vehicle for demonstrating that your story will be sympathetic and well-received by the fact finder. Think of your mediation summary as a form of settlement brochure: Here’s our story, here’s our theme, here’s our evidence and here’s why a judge and jury will rule in our favor.

The medium is the message: Marshall McLuhan taught us “The Medium is the Message.” His point was simple: The medium used to deliver the message influences how the message is perceived. The lesson for advocates is that their written mediation summaries – including the packaging of it for delivery to the other side - should convey competence, professionalism, civility, good judgment and experience. It says a great deal about the lawyer and support staff. Are they attentive? Conscientious? Do they take pride in the way their work looks? Attractive mediation summaries are written using headlines or section headings in bold font, with frequent references to the attachments. Is the summary plus attachments extensive? Advocates who recognize the importance of McLuhan’s insight enclose their summaries in a three-ring binder or have the package tape, comb or coil bound with professional looking covers. Exhibits are attached using tabs , not a simple piece of paper with “Exhibit A” typed in the middle. Tabs make it easy for the reader to turn to the designated document without thumbing through multiple pages searching for the right one. A professional-looking mediation summary package establishes that the advocate is thoughtful, effective, well-prepared, has a firm grasp of the law and facts and is likely to be a formidable opponent if the case does not settle. That’s a message every advocate should want to convey!

Relief requests: Many lawyers, particularly those who represent the plaintiff, like to include a dollar demand for relief at the end of their written summaries. This is generally a mistake. First, the written demand is almost always unrealistic. Indeed, it is rare for the number written in the summary to surface again at the table. Second, I’m not certain who the target is for the written number – but it will surely be read by the other side. When the number is a departure from the last offers discussed by the parties during direct negotiations, the result is consternation, anger and sometimes a reluctance to continue the discussion. A simple statement that the writer intends to make a demand consistent with the law and evidence will generally suffice. That said, if you have an economic damage model showing lost wages to date, lost profits, lost future profits, front pay, or whatever other economic claim you have, your mediation summary is a good place to transmit it to the other side. The message, however, is not “this number represents my demand.” The message is “I’ll be making a reasonable proposal to settle at the table. The numbers in the example represent an economic analysis I expect to blackboard if this dispute doesn’t settle.”

Non-economic relief: By contrast, the written mediation summary is often a good place to signal that a party has non-economic concerns as well as economic ones. For example, if plaintiff in a wrongful discharge case will be seeking reinstatement, advance notice in the written summary provides management time to meet with the appropriate parties to determine if relationship repair is in the cards.

Encourage the other side to provide a copy to her client: If you have a concern that the party on the other side of the case might not be given a copy of your summary to read, prepare two copies. Serve both on opposing counsel and explain that one copy is a courtesy for his client. Bring extra copies to mediation to provide one to the other side. If they did not share it before, you can be sure it will be read during caucus.

Mediation Advocacy Adopts a Reasonable and Collaborative Tone

In mediation, I ask the disputants to leave their zealous advocacy persona at the door and replace it with a joint problem solver mindset. Mediation is where we ask the parties to cooperate in the search for common ground. Everyone in the process has the exact same problem: how do we settle the dispute before us? Approaching mediation as joint problem solvers is very different from an approach using traditional advocacy models. Joint problem solvers adopt the right tone in their summaries and their oral presentations. They create the right atmosphere for settlement. They resist the urge to litigate grievances between the lawyers (“he hasn’t cooperated in discovery,” for example.) They replace invective and harsh words with a reasonable and logical presentation. They seek to de-escalate, not ratchet up the emotions. We’ve all heard the old adage, “We get more flies with honey than vinegar.” It’s equally applicable to mediation summaries. See also, “Making the Most of Mediation: 10 Top Tips for Maximizing Results in the Process,” Tip #9. https://www.starkmediator.com/?p=64

Effective Mediation Summaries are Supported by the Evidence

The story must be true: Every important statement in the mediation summary should have evidentiary support in the record or in a signed affidavit. Establish the validity and reliability of the good story you’re telling by showing you have the evidence to back it up. When evidentiary support is attached to the summary in the form of exhibits, you demonstrate readiness to try your case if it cannot be settled. Supporting exhibits compel the other side to engage in a productive conversation with the mediator which includes risk assessment, reality testing and, perhaps, a wake-up call.

Examples: Is the dispute centered on a lease or contract? Attach it as an exhibit. Is there a key memorandum summarizing your client’s version of the meeting? Provide a copy. If it’s likely to serve as an exhibit at trial or an attachment for dispositive motion practice, chances are it will serve a useful purpose at mediation. From the employment policy allegedly violated to the written procedure setting forth proper practice; from the inconsistent EEOC complaint to the email exchange that turned the relationship sour; from the falsified employment application to the misrepresentation about the value of an asset; from the notes summarizing the meeting to the performance improvement plan preceding discharge; from the photographs and diagrams to financial charts and graphs; all are persuasive examples of your readiness to try your case. Equally powerful are deposition transcript pages containing key admissions, effective cross-examination and support for your theories. Exhibits bolster advocate credibility, underscore the risk opposing counsel faces and set the stage for a meaningful mediation process.

Highlight exhibits: Some exhibits are longer than others. Don’t make the mediator or opposing counsel pore over the pages reading every word. Don’t annoy everyone by forcing your reader to figure out on her own which paragraph in a 40-page document is the one you’re relying on. Use a highlighter to focus precisely on the key language. Indeed, if the language is especially compelling, attach it and quote it in the body of your summary, as well.

Don’t send the wrong message: When counsel does not attach record evidence, several alternative conclusions are likely to be drawn by the mediator and the other side, none of them favorable. First: you don’t have the goods to back up your claims or defenses. Ouch. Second: you did not think your case was worth the time and effort to warrant the effort. (“If counsel really thought this case was worth six figures, he would have done the work!”) Double ouch. Third: counsel is not well prepared. Hmm. One essential factor in risk assessment is sizing up the skills, motivation and effectiveness of the advocates. No self-respecting trial lawyer wants to be thought of as ill prepared and ineffective. Fourth: the documentation is vulnerable. Counsel has not produced the document because it’s weak or easily construed against him. Know too that your client may pick up on these same conclusions and start questioning your effectiveness.

A Solid Legal Analysis Provides a Firm Foundation

Include a section containing your legal analysis: I practiced law for many years. I have a good handle on any number of areas of legal specialization including employment law, business torts, police misconduct and probate. Nonetheless, I welcome a legal analysis, a quick review of the law, a reminder about burdens of proof, prima facie showings, presumptions and the like. It never hurts to remind the mediator and opposing counsel of express statutory language, important regulations, rules or code provisions. If there are cases that support your claim, by all means attach them as exhibits, too. Where a court has already ruled on the same exclusion provision of an insurance contract or a similar legal claim, for example, don’t assume the mediator – or even opposing counsel – is aware of it. If you’ve got the law, make certain everyone else at the table has it, too.

Highlight cases: If a case contains facts similar to the ones in the dispute being mediated, highlight the facts. If there are legal principles on which you rely, highlight the passage in the case you think especially apt. Don’t be afraid to “spoon feed” your reader. At least in my case, I’ll think it effective advocacy!

The Most Persuasive Summaries Focus on Risk

Mediation is not about right and wrong: The strongest and most persuasive advocates are unlikely to convince the other side that “we’re right and you’re wrong.” Efforts to persuade the other side about the facts run into a brick wall. They have their own story to tell, their own version of reality. Their resistance may be reinforced by lack of trust, a failure to communicate, bad blood, prior experience or ignorance. Most disputants reach mediation filled with skepticism for the other side’s arguments. I often hear the lawyers say that just hearing the other side’s version may be unproductive. Even where the parties agree to listen to each other with an open mind, few are able to live up to their promise. As a result, I tell the participants that we’re never going to agree on the facts, or on who is right and who is wrong. Nor am I going to spend time trying to find agreement.

Focus on risk factors: By contrast, in my experience, good advocates are often able to agree on identification of risk factors. This case is assigned to Judge X. How likely is Judge X to grant a dispositive motion? Both sides generally agree when Judge X is more receptive to one side or another. What happens if the motion is granted? What happens if it is denied? What leads you to think Judge X will grant a motion in this case? Is there a key piece of evidence supporting your claim? Is the other side likely to file a Motion in Limine to exclude it? How likely is Judge X to grant a Motion in Limine? How strong is the case if the evidence is admitted; how strong if it is not? Either way, is the question close enough to warrant an appeal, thereby costing more time, money, effort and disruption? If an important eye-witness hasn’t been found by the time of mediation, what are the odds she will be found by the time of trial? How strong is the case if the witness testifies; how strong if the witness does not appear? If a key witness or party has credibility problems, what is the likely impact on the overall claim or defense? No matter how compelling a witness, if he falsified his employment application, cheated on his expense reports or told a bald-faced lie during the investigation, there is a serious risk that nothing he says under oath from the witness stand will be believed.

Spell out the risk factors: I encourage advocates to weave a discussion of the risk factors into their mediation summary or include a separate section focused on the other side’s risks. A risk analysis from a skilled trial lawyer will often be more persuasive than an exposition of events from your client’s perspective.

Risk factors assist the mediator: There’s another compelling reason to focus on risk factors in your summary. They prepare the mediator to spend time with opposing counsel asking tough questions. As mediator, I want to know the strongest parts of your case and the areas of greatest risk to the other side in order to have an effective conversation in private caucus. I also welcome your candor in discussing your own weaknesses – and how you intend to handle them.

A Picture Is Worth 1000 Words

Visual aides at mediation: Visual aides, videos, photos, charts and diagrams are effective demonstrative aides at trial. Few lawyers take the opportunity to use them in mediation. Visual aides are powerful. They are compelling. They persuade. Using them in mediation gives the other side a preview of what’s in store at trial. You may lose the element of surprise, but in this era when only a tiny minority of cases are tried, they increase your settlement prospects at mediation. A well-respected federal district judge once told me that in criminal cases in his courtroom, federal prosecutors meet with the accused and defense counsel. Using “Trial Director” software, the prosecutor demonstrates how the government intends to present its case at trial. Since beginning the practice, the number of pleas shot up significantly.

Visual aides can close the deal: Visual aides are often far more compelling than words. We say, “a picture is worth 1000 words” for a reason. Accordingly, I encourage you to consider using them in your mediation summaries. When your case involves understanding the significance of financial data, statistics or complicated numbers, the value of charts and graphs grows exponentially.

Incorporate technology: Mediation is an opportunity to take advantage of technology. In a serious injury case, for example, counsel might consider providing the other side and the mediator with a video revealing a day in plaintiff’s life. In an Americans with Disabilities case, which turns on whether a machine can be modified to accommodate plaintiff’s medical condition, a video of the machine in operation could be highly effective. In a landlord-tenant dispute, video of water leaking down from the ceiling onto someone’s expensive computer as a result of inadequate roof repair can be highly persuasive.

Private and Confidential Supplements to Your Mediation Summary

Mediator “eyes only” submissions: During the pre-mediation conference call, I always offer attorneys the option of submitting something in writing on a mediator “eyes only” basis, not to be shared with the other side absent express permission to do so. Lawyers are often reluctant to take advantage of the offer.

Ex parte communications are proper: An “eyes only” submission is an ex parte communication. Most Michigan litigators are familiar with an all-caucus model where the parties sit in separate rooms and the mediator shuttles back and forth carrying messages between them. Every communication in that model is ex parte. Why wait until the day of mediation to start sharing important but sensitive information with the mediator?

Concentrate on interests and needs: That said, private and confidential “eyes only” communications work best when used to discuss a party’s underlying needs and interests rather than positions. Your positions are best laid out in your public, shared submissions. The private letter is an opportunity to tell the mediator how he can best help you. Do you have a problem? Do you face a particular risk? What do you see as the biggest obstacles to settlement? What suggestions do you have to overcome those obstacles? What are your clients underlying needs and interests? Does your client have a concern that if she settles this case, there are numerous other potential claimants out there who might learn about the settlement and sue, as well? How do you size up the underlying needs and interests of the other side? What’s driving them? What would help them get comfortable putting this dispute behind them? Do you have suggestions for settlement options or terms that might be well received by the other side if the monetary issues can be resolved? In my experience, Michigan lawyers are reluctant to agree to this option.

Decide as you write: There is no need to decide immediately during the pre-mediation conference call. Reserve the option “just in case.” As you write your public mediation summary for exchange with opposing counsel and client, think about what you might want to say privately to the mediator. If it makes sense, draft a “private and confidential” eyes-only letter to supplements your public summary.

Most participants in mediation recognize that mediation advocacy is different from the traditional zealous advocacy most common in the judicial process. The same principles apply to your mediation summary. Your written submission presents a unique opportunity to engage in cogent and persuasive written advocacy. If you draft your next written submissions as recommended and package them to deliver a message of professionalism and competence, the results achieved at the table are likely to be better than you expect.

Recent News

Nov 14 Shel Stark Awarded Top Honor From ADR Section of Michigan State Bar November 14th, 2023 On October 24, 2023, the Alternative Dispute Resolution Section of the State Bar of Michigan awarded Shel Stark their top honor, the Distinguished Service Award. The Distinguished Service Award is “presented to an individual, program, or entity at the ADR Section’s annual meeting, and is given in recognition of significant contributions to the field of dispute resolution.” Also shown in the photo are Anne Bachle Fifer, recipient of the Nanci Klein Award, Zena Zumeta, the George N. Bashara, Jr. Award, Nakisha Cheney, a Hero of ADR Award, Zenell Brown, recipient of the Diversity and Inclusion Award, and Jennifer N. Grieco, a recipient of the George N. Bashara, Jr. Award. Read More Mar 19 Shel Stark speaks in Grand Rapids March 19th, 2022 On March 18, Shel Stark spoke at the 2022 Voluntary Facilitative Mediation Advanced Refresher Training sponsored by the United States District Court for the Western District of Michigan. The topic presented was “Building a Successful ADR Practice.” Read More

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Mr. Stark was thoroughly well prepared and professional throughout the proceedings. He took a great deal of time to understand the issues presented, the parties’ true motivations, and to communicate effectively with the parties about achieving… Read More – Joseph A. Lavigne, Law Offices of Joseph A. Lavigne, Farmington Hills

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Introduction

Background on the Course

CO300 as a University Core Course

Short Description of the Course

Course Objectives

General Overview

Alternative Approaches and Assignments

(Possible) Differences between COCC150 and CO300

What CO300 Students Are Like

And You Thought...

Beginning with Critical Reading

Opportunities for Innovation

Portfolio Grading as an Option

Teaching in the computer classroom

Finally. . .

Classroom materials

Audience awareness and rhetorical contexts

Critical thinking and reading

Focusing and narrowing topics

Mid-course, group, and supplemental evaluations

More detailed explanation of Rogerian argument and Toulmin analysis

Policy statements and syllabi

Portfolio explanations, checklists, and postscripts

Presenting evidence and organizing arguments/counter-arguments

Research and documentation

Writing assignment sheets

Assignments for portfolio 1

Assignments for portfolio 2

Assignments for portfolio 3

Workshopping and workshop sheets

On workshopping generally

Workshop sheets for portfolio 1

Workshop sheets for portfolio 2

Workshop sheets for portfolio 3

Workshop sheets for general purposes

Sample materials grouped by instructor

Mediating/Negotiating Essay Checklist

Mediating Essay Checklist

• Have you described clearly the positions adopted by authors in your Aims chapter?
• Does your essay show that you understand the positions?
• Have you written from an unbiased position as mediator?
• Have you moved "beyond the stated positions and the facts of the dispute to expose the underlying interests, values, and beliefs of those in opposition"?
• Have you shown what interests the authors have in common?
• Have you increased each side's understanding of the other?
• Have you explained your solution to the dispute, especially how your position is based on interests and values that will be acceptable to both sides?
• Have you used logic and other appeals effectively?
• Does your essay include evidence from the Aims essays?
• Does your essay include evidence from other sources?
• Have you documented your sources clearly?
• Have you created a clear Works Cited page?
• Step back and look again at focus, development, and coherence. Have you produced a well-written essay?

Negotiating Essay Checklist

• Have you described clearly the positions adopted by members of your group?
• Does your essay make clear that you understand the differences in interests, background, and values among group members?
• Have you made clear the bias from which you are working?
• Have you found a negotiating position that accommodates at least some of the interests of all sides?
• Have you explained your resolution of the conflict?

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7 Tips for Writing a Strong Mediation Brief

Your mediation brief is critical to the mediation process. It signals to your mediator that you are prepared and know what you’re doing. For your opposition it demonstrates that you have convincing evidence, a compelling narrative, and the skills needed to win, should the case go to a trial. Your mediation brief’s most important job is to convince your client. Here are seven tips for writing a strong mediation brief.

Remember that mediation is not about being right

Even the most persuasive advocates are unlikely to convince the opposing side that they are right. Each side has their own agenda and their own version of reality. There can be a lot of bad blood, mistrust, poor communication, and ignorance, and that will get in the way. Mediation isn’t about listening to the other side and agreeing on the facts or who is right. That is just never going to happen. Your goal is to meet in the middle somewhere and compromise, since each side typically thinks they are completely in the right.

Help your client understand

You should be trying to help your client understand the situation, not repeating tired old clichés. Explain to your client the information that is being exchanged in the mediation, and that that information can form the base of a favorable settlement for them. Resist the temptation to speak in clichés such as “the other side is negotiating in bad faith” and your client is “standing on principle.” These kinds of statements are just not helpful to the process. 

Be careful of your tone

“Tone is important because there is big different between mediation advocacy and trial advocacy. You can be persuasive in mediation without crossing over into being insulting or combative,” advises Margaret Ward, project manager at Topcanadianwriters and Studentwritingservices . Don’t accuse the other side of dishonesty or falsifying information, that is not conducive to reaching a settlement. You are trying to find a solution, not win a battle. 

Have a theme

Think about your mediation brief as a story you are telling. Humanize your client and explain what has happened to bring them to this situation. All the best stories have a theme, what will your story’s theme be? Try and make it one that is universal and easy for people to relate to. Some good examples of universally understood themes are “they broke the rules,” “a broken promise,” and “not accepting responsibility for their actions.”

Outline how you think the case can be solved

The most important thing to include is your plan for how the case might come to a resolution. Is there something your client absolutely needs to have? Is your solution something as simple as a payment or possibly an agreement for business in the future? These kinds of proposals are a big part of the reason why mediation results in settlements that are more favorable than one decided in court. 

Talk about risk factors

Your brief should outline what the possible risks are. Examine and weigh these risks and then decide if you should settle on something in mediation or move on to a trial. What evidence do you have to support your client’s claim? Is there an eye-witness that isn’t available for mediation but may become available by the time of a trial? How strong a witness are they? What are the risks for the other side?

Use business writing tools to improve your brief

It’s important that your mediation brief is professional and flawless. Typos and other kinds of writing errors can reflect carelessness and unprofessionalism. Here are some business writing tools that can help you write a better mediation brief:

Academ Advisor – Writing is a skill and it needs to be practiced, and one good way to do that is with a guide. These online business writing guides can help improve your writing process and leave you with a better finished product.

Ox Essays and Boomessays – These tools will help you format your brief properly. Formatting is something that a lot of people struggle with and it’s important to get it right.

Top essay writing services – This is a great resource where you can find grammar checkers and other tools. Grammar is tricky, but if you mess it up you can look like an amateur, so let the pros help you out.

Bigassignments and Academized – Use these online editing and proofreading tools to make sure your mediation brief is flawless. Just one or two errors can discredit your otherwise good effort.

Mediation can be a very effective and beneficial way to resolve a dispute because of its confidential nature and because a decision is not imposed on you. Always try and make the most of a mediation situation; writing a strong brief is the first step in that process. Your written mediation brief, if done professionally and competently, can be a big part of the reason your side receives a favorable resolution. Follow these seven tips for writing a strong mediation brief.

Freddie Tubbs

Freddie Tubbs is a communication manager at Resumention. He regularly attends project management and marketing events, and contributes columns to Revieweal and Write my Australia blogs. MORE >

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7 Proven Steps for Drafting A Mediation Brief

Any great mediation brief should begin with a careful evaluation of your audience. Ask yourself a few questions to understand better who will see your brief. Who is in charge of making the settlement decision? Who is the most important group of people to influence in this document?

Attorneys receive lots of training and spend countless hours practicing to prepare to win appellate briefs, arguments, and summary judgment motions. That said, it’s essential to also focus on the mediation brief. Unfortunately, mediation briefs are either overlooked, prepared at the last minute, or both. However, mediation briefs have much more of an influence on the mediation process than you might think.

It’s understandable to think that every brief must focus only on the mediator. However, this isn’t always the case because every mediation session differs. Fortunately, you can prepare for certain recurring themes and situations by reading this helpful guide. Follow these seven steps to start having an easier time writing mediation briefs.

1. Confidential or Non-Confidential?

Mediation briefs are often submitted to a mediator or panel under strict confidentiality during a typical mediation process. With this strong sense of confidentiality, this usually means that opposing parties never see the other party’s mediation briefs.

Unfortunately, a confidential brief can have its drawbacks. A defendant’s mediation brief must convince the plaintiff’s attorney that they value this case far too highly. This same goal can be achieved by presenting another risk factor that makes a lower-figure settlement discussion the optimal goal.

A defense attorney could prepare a well-written brief that isn’t confidential. In this brief, the defense could present something that might cause the defense to lower their respective client’s expectations. In turn, this creates a substantial potential victory for the defense.

On the other hand, a plaintiff’s attorney could use a non-confidential mediation briefing to influence the defendant’s liability insurer and attorney. This attorney could create briefs addressing liability, damages, and coverage issues. These are all issues aimed at defense attorneys, insurance adjusters, and insurance companies’ coverage attorneys.

It’s understandable to want to create confidential mediation briefs, which will help give a mediator valuable insight. However, confidential briefs won’t help insurance adjusters convince their bosses that covered claims must be taken seriously or that reserves must be increased before mediation begins.

You can present a mediation brief that does everything possible to hold the defendant liable for significant damages successfully. Unfortunately, it won’t be able to influence key members of the defendant’s team if they never see it.

2. When to Send This Document In

When it comes to mediation briefs, timing is extremely important. It’s extremely beneficial to complete and distribute mediation briefs well before the mediation process. In some cases, experienced mediators can start looking at everything and be ready to start mediation the next day.

Imagine you send in mediation briefs three weeks in advance during a high-dollar, complicated case. This gives insurance adjusters extra time to work with coverage counsel and to secure the authority to settle the case. Even if you present a winning brief, it’s unlikely to have its intended effect when you submit it at the last minute.

It’s also beneficial for those on the defendant’s side to get mediation briefs prepared and sent out as early as possible. Doing this can alert the plaintiff’s attorney to problems that call for discussions with respective clients right away. Giving everyone extra time to look at a mediation brief’s details can mean the difference between a settlement and another day spent meditating.

3. Creating the Structure of an Excellent Mediation Brief

Many attorneys often spend time wondering what mediation briefs should look like. With that said, this is a difficult question to answer. There’s no set length or magic word total that will help you create winning mediation briefs.

If a matter is cut and dry, there isn’t often a need to create a long-winded mediation brief. However, if you’re dealing with a complicated subject matter and want others to see what you’ve found, lengthy mediation briefs served in advance are a wise option. Like most legal documents, you’ll want to start with the big picture when it comes to structuring mediation briefs. After doing that, you can begin drilling down your topics to focus on more specific issues.

Certain attorneys find that writing a mediation brief’s introduction takes the longest time. This document’s introduction needs to get lots of information across by using as few words as possible. Also, your introduction should make an impact and influence the reader’s thinking. It’s also a good idea to lead the reader along with information so they can anticipate how the rest of the brief will proceed.

Start your brief with a strong introduction that pinpoints all important issues in a way that gives the reader just enough knowledge without overwhelming them. This also provides the reader with the urge to want to keep reading to find out essential information.

Mediation briefs that start with lengthy backgrounds filled with details instead of something short and well-crafted often do not make much of an impact. If you start bombarding your audience with fact after fact, they will wonder what pieces of information they should cling to.

Another possible outcome of presenting too much information is completely tuning out your audience. If you’ve been in a situation where you’re being presented with endless amounts of information, especially in a short time, it’s easy to feel overloaded fast.

4. Acknowledging Helpful and Adverse Cases

Case law can make a major difference in mediation or the outcome of litigation proceedings. With the exception of complicated cases, one or two essential judicial decisions often justify many discussions in briefs.

If you find a helpful judicial decision goes your way, highlight that case. You don’t want to devalue something of such importance by including it in a lengthier part of your mediation brief or tossing it in with one of many other cases you’re going to mention here.

There’s also the possibility of a case going against you. If this happens, acknowledge the situation and try to downplay its impact on the mediated matter at hand. By only mentioning a positive case and avoiding adverse ones, you’re not sending out the right message.

Adverse cases are out there. When they rear their heads, why not show a mediator that you’ve thought about it beforehand? By limiting the impact of these types of cases, it sends a message to the other party that might throw them off.

5. Discussing Special Factors

Something else you can do to help a mediator is to create a brief that highlights factors that might either promote or hinder settlements. You can indeed discuss special factors with a mediator during the mediation process. However, briefing certain factors in advance might give the mediator an advantage going into the mediation. To put it another way, pre-mediation phone calls that take place between attorneys and a mediator can jump-start negotiations.

You’ll want to take a moment to consider the following examples. Think about a plaintiff’s desire to win money or a defendant’s meeting that recently took place with a bankruptcy attorney. These are all things a mediator would want to know about before a mediation session begins. When good mediators learn this type of information, it also helps all parties move towards a reasonable resolution for everyone involved.

However, if special factors aren’t mentioned, they can backfire. If the mediator begins by speaking to the other party, they could accidentally say something that obstructs a settlement dicussion.

As an example, imagine you’re representing a restaurant in an employment case. During this time, you argue your client is struggling to make payroll. You don’t mention this in the brief because you plan to tell the mediator this during the open offer process. However, the mediator speaks with the plaintiff first and casually mentions eating at that restaurant the night before and how full it was. In a few moments, the mediator has unintentionally unraveled the argument about your client having no money.

During mediation, mediators will want to see histories of previous settlement positions and negotiations in all parties’ mediation briefs. Since effective mediation is about all sides agreeing, achieving this goal is hard if you write hatefully to describe the other party.

When writing about the other party, using neutral language and sticking to the relevant facts is best. For example, it would be good to say that “the defendant began negotiating with an offer of $25,000 and the plaintiff made a counter demand of $100,000.” On the other hand, saying something like “the defendant threw out an insulting offer of a mere $25,000” wouldn’t be the best decision.

It’s also never a good idea to use the word “extortion” in any brief unless you’re specifically working on an extortion case. If you’re a defendant and trying to make a claim that the plaintiff is “extorting” money from your client, this is never a wise idea. And, even worse, a smart mediator might call you out on the use of this term. After that, you’re left looking like you don’t have the clearest understanding of what you’re supposed to be doing.

6. The Impact of Exhibits During Mediation

If you’re looking to make a mediation brief stand out, exhibits are great ways to achieve this goal. With that said, you don’t want to overload your brief with lots of exhibits. Doing this can dilute the impact of the exhibit’s power. To avoid this problematic situation, choose a select few pieces of evidence that either show your client’s strengths or the weaknesses of the other party.

While you’ve likely had weeks, months, or even years to study the details of a case, this isn’t always the same for a mediator. In certain situations, mediators might only have one or a few days at most to go over this case. Considering that, you’re going to make the most impact on a mediator by presenting exhibits clearly and in a way that makes an impact on this individual. You can also do this by cutting down lots of exhibits and only including the most powerful ones.

If you’re working with lots of complex data, consider condensing everything into a chart that’s easier to take in. By taking the extra time to make your exhibits stand out, it can impact the mediator and other parties.

7. Writing Your Concluding Remarks

Unfortunately, many attorneys do not spend too much time or effort concluding their briefs. Inserting a weak conclusion in your brief can have more of an adverse effect than you might think.

Take a moment to put yourself in the shoes of a mediator. You’re reading a 30-page document from a defendant with a seemingly airtight case against an opposing counsel. And, all of a sudden, the defendant’s credibility takes a nosedive when you see their weak conclusion. Saying something like “in closing, for all of the reasons we’ve previously mentioned, summary judgment should be in favor of the plaintiff” creates a conclusion you don’t want on your brief.

To ensure you’re writing an effective conclusion, as they often do, imagine a mediator reading this section of your mediation brief first. Would your conclusion give them a clear overall idea of what the points you’re trying to make? If not, it’s time to look over the rest of your brief and take note of your key points.

You’ll also want to echo the main theme of the case you’re working on. There’s no set theme for every type of mediation. To find out more about this theme, take into account the facts, law, previous negotiations, and the unique personalities of everyone involved. When you know the theme of this case or something else you want to be fresh on the mediator’s mind, insert it into your mediation brief’s conclusion.

It’s understandable to have a lot on your mind while preparing a legal argument for a client. With that said, make sure you’re not just doing the bare minimum to rush this document out. Instead, determine who you want this document to include before the mediation begins. Next, use the mediation brief you’ve created to influence those whose decisions matter the most. Creating an excellent mediation brief will take more time and effort, but the results will make your efforts well worth it.

To learn more about drafting a mediation brief, opening statements, and more, contact ADR Times!

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5 Tips for How to Write a Mediation Summary

by BTMediationAdmin | Mar 15, 2021 | Arbitration , Mediation | 0 comments

A good mediation summary includes key components of the narrative and should include a brief summary of the legal issues of your case, so you should know how to write one. 

A written mediation summary is absolutely essential when it comes to communicating during the process. It offers three different audiences a very simple overview of your skills: your client, other attorneys, and your mediation. Your client will once again be reminded of just why they hired you as a great attorney.

The other attorney and his or her clients will quickly know the power of your story, the strength of your evidence, and just how skillful you are should you ever go to trial. Learning how to write a mediation summary that displays all of those traits can be a little daunting if this is the first time trying to write an effective mediation summary. Understanding what works and what doesn’t is absolutely key to moving forward. 

These tips can help:

Find the Right Tone

• Tell a Good Story 
• Include Evidence to Support Your Position

Add an Analysis Section 

• Consider Adding Visual Aids 

Now, let’s get into these tips a little deeper. 

In court, you might have a very different tone than you do in a mediation summary. An effective mediation summary isn’t defensive. It isn’t urging a fast, big solution to the problem. Instead, it is reasonable. Mediation summaries are supposed to encourage collaboration . You want your summary to at least make it look like you’re searching for some common ground. 

After all, everyone involved in the process is trying to settle the dispute, so looking at the situation from that perspective means not being a loud advocate at the moment. Should you go to trial, the day will come when you need to build that tone, but your initial summary should create an atmosphere that helps to encourage settlement, not build additional grievances. 

Be as reasonable as possible as you write. 

Tell a Good Story

An effective mediation summary is a single, coherent narrative.

 It’s the one space in this entire case where you can tell your story as clearly as possible. People are influenced by stories, and telling your client’s story in a persuasive manner can help everyone involved see his or her point of view and create a humanistic perspective instead of making the case about something else entirely. Remember to include a solid theme throughout your story (a life lesson to which everyone can relate) and keep it as simple as possible. 

Good themes are those that almost everyone knows are true” As you tell your story, though, make certain that you’re continually conveying your professionalism and experience. Ensure the document itself is well written, attractive, and looks like a polished document. 

You may also want to prepare additional copies so the attorney on the other side can forward one to his or her client. 

Include Evidence That Supports Your Position

Learning how to write an effective mediation summary means learning how to carefully weave the evidence in so that the story rings true. 

Any place where the validity of your account may be called into question should have corroborating evidence included to back it up. Feel free to include this in the form of exhibits attached to the presentation, as that will help show you are ready to take this case to trial should mediation not be the way forward. 

For example, imagine the dispute at hand is centered around a contract. Make certain that the contract is exhibit A. This not only shows your presentation is ready for the mediation table or the trial, but it also offers powerful proof during the actual mediation. 

Within those exhibits, feel free to highlight the necessary portions to help draw everyone’s attention to exactly what is disputed. In the imaginary contract dispute above, highlight which paragraph created the initial problem. Feel free to quote parts of it in the story as well. 

The story is absolutely essential. However, the evidence to back up the story is important, too. As is a legal analysis of the case to which everyone involved can refer. 

Even if you’ve handled thousands of employment law cases, it may be helpful to see a quick review of the case law involved in the actual case that’s been raised. To do this within your mediation summary, offer a quick note about the essential regulations or codes that apply. Quote the statutory language and previous cases.

You may want to mention the burden of proof or any other analysis that might be helpful to this case. 

Consider including Visual Aids

Your words alone can paint an amazing picture of the case, but including photos, charts, or diagrams are a great way to build out your summary. 

Visual elements can quickly help augment your story and persuade others to see what you do. What’s more is that if you build them out during mediation, you can likely use them should your case go to trial, too. In some cases, the visual aids you include may actually be more compelling than your story. 

Ultimately, mediation summaries are the one space where you can build a careful message you’re certain will be heard without interruption. It’s the space where you can change the decision-making process and reach a settlement faster, and tips like these can help you get there. 

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“15 tips for a successful mediation” – part i of a three-part series.

Author’s Note:  We have divided the full article into a three-part series to cover five tips in each section.  From what to expect in a competitive negotiation and drafting a mediation summary, to setting bargaining points and techniques for preparing strong opening st atements, this article covers practical tips that lawyers can apply immediately in their practices. I invite you to read the article and feel free to contact me with any questions.  We’ll post Part II in a few weeks, so please come back to read more on this topic.

David P. Hathaway   [email protected]

_____________________________________________________________________________________________

15 Tips for a Successful Mediation  (Part I)

Civil lawsuits are most often resolved by a mediated settlement agreement, which could have an infinite variety of settlement numbers and terms.  What result a party achieves, after months or even years of litigation, is in large part a function of what happens on the day of mediation.  Mediation is therefore the most important day of the case.  Ironically, most lawyers go through law school and their legal practice with no formal education or training on how to represent a party at mediation.  They just watch others, whether good or bad, and learn the ropes over time.  However, mediation is far too important to learn by trial and error, because it is the day where all the fruits of a lawyer’s labor are put to the test.  Therefore, this article is meant to provide lawyers of all experience levels with some practical pointers on how to succeed at mediation and thereby better serve their clients and improve judicial economy as a whole.

            Tip #1: Expect a Competitive Negotiation.   Mediation is not a cooperative negotiation process.  There are books about cooperative negotiation where both sides show all their cards and reach a “win-win” result.  For example, if you had one orange and two people wanted it, rather than slicing it in half, both parties could come to the table and explain why they wanted the orange.  It might be that one party intended to squeeze the juice and the other person wanted to use the rind for a cake.  By sharing this information, the parties realize they don’t have to cut the orange in half, and can both get everything they wanted.  This requires trust and honesty, and quite a bit of luck.  By contrast, civil litigation is often about money, and therefore it is a zero sum game.  That is to say, $100 out of your pocket will become $100 in my pocket, and the sum is zero.  If one lawyer attempts a cooperative approach in mediation, he or she should not expect the other side to do the same.  A competitive negotiator will clean the clock of a cooperative one.  For example, if a cooperative negotiator explains that his client really needs only $1,500 per month to cover the remainder of the lease payments, the competitive negotiator might never offer a lump sum payment.  For purposes of mediation, expect the negotiations to be competitive, not cooperative.

            Tip #2: Don’t Drop Anchors.  Negotiation begins long before mediation.  An anchor is a number mentioned at some time in the lawsuit that the other side will no doubt remember many months later.  Any number will sound like an offer, even if it is not.  Attorneys may try to use qualifying language, like “my client might go to $100,000” or “I doubt he would go to $100,000,” but qualifiers fall on deaf ears.  All the other lawyer hears is a possible settlement number, or an “anchor,” of $100,000, which has a powerful effect on where the case ultimately settles.  In one study, lawyers were asked to value a rare jewel for auction, and were given information about its condition, rarity, age, maker, and comparable sales.  They were handed a detailed questionnaire, which asked at the end, “Do you believe the value at auction exceeds $2,500?” There was a blank line for the attorney to give his or her best estimate of value, and the average number given was $1,800.  Other lawyers were given the very same questionnaire but instead, at the end, it asked whether the value would exceed $5,000 at auction.  The average estimate given on these forms was $4,200.  The anchor, therefore, made huge impact on the lawyer’s valuation.  If opposing counsel asks what your client might take, you may not want to give a number.  For the plaintiff, you might indicate, “he is looking to recover the whole amount” or, for the defense, state “we are not looking to pay anything at all.”  Of course, if you serve a proposal for settlement under Fla. R. Civ. P. 1.442, you will have to weigh the potential fee-shifting benefit of offering a settlement number with the drawback of dropping an anchor.  Since the vast majority of cases are resolved in settlement rather than by court adjudication, which is where fee-shifting might occur, avoiding the anchor may be the weightier consideration.

            Tip #3: Skip the Phone Debates.  Just like dropping anchors, try not to engage in telephone debates with opposing counsel that reveal all your mental impressions about the case.   If you concede one part of your case is weaker than others, you will have lost the force of those arguments at mediation.  The same goes for those conversations in the courthouse before a hearing.  There is obviously some merit to “feeling out the other side” and determining whether the lawsuit can be resolved earlier rather than later, but be careful of what information you share.  Sometimes it is easiest to indicate that your position has already been stated in the pleadings.  There was a scene in The Godfather where Sonny Corleone starts openly questioning a rival mob family’s proposal during a meeting with his father, and afterward, Don Vito Corleone tells his son never to let anyone outside the family know what he’s thinking.  The same can be true in civil litigation, both in sharing thoughts about the case and even in proposing mediation.  If your client wants to go to mediation, be careful how you communicate it to the other side, because sometimes it can be perceived as a sign of weakness.  Some lawyers even confirm in writing that it was the other attorney who suggested mediation.  In Florida, mediation is required before trial, but remember not to mediate too early, before the parties have bled enough, or too late, when the parties end up fighting mostly over the legal fees.  In your communications with opposing counsel regarding the merits of the case or the prospects for mediation, less is more.

            Tip #4: Guard Against Overconfidence.   Studies show that lawyers are overly optimistic about both their chance of winning and the damages recoverable.  In one study, lawyers were asked to pretend they were a sports agent for a starting pitcher in Major League Baseball negotiating against his team.  The agent’s last offer for the pitcher’s contract was $6.75M and the team’s last offer was $4.25M.  The average contract for a pitcher with your client’s win-loss percentage was $5.375M.  In a process called “baseball arbitration,” each side submits a confidential proposed outcome and the arbitrator can choose only one offer or the other; he has no other option.  In this hypothetical, the lawyer submits a number and is asked to give a percent likelihood that the arbitrator will choose his number rather than the team’s number.  In filling out the questionnaire, lawyers on average were 78.5% confident that their number would be selected.  In actuality, anything over 50% is wishful thinking.  Even very experienced lawyers make this mistake.  Anything can happen at trial, and because a strong case on the merits could fail for some reason no one considered, your best estimate for success should be around 50%.  Also keep in mind that experience may boost confidence, but it does not necessarily improve ability.  Some lawyers have been making the same mistakes for 30 years of practice, and one of those mistakes is being overly confident of an outcome at trial.

            Tip #5: Make a True Case Valuation.  A true valuation of a case is the present value of a future outcome.  If you represent a plaintiff who can potentially establish $1M in damages, it would be inaccurate to simply conclude that the case is worth $500,000 because each side has a 50% chance to win at trial.  One reason is that parties fail to consider the recovery may be $1M or much less.  If you made a bar chart, starting at zero and ending at $1M, you might see a peak in the middle, where a recovery of $500,000 is more likely than a recovery of $250,000 or $750,000.  To make an accurate valuation of a case, you should first estimate the likelihood of recovering different amounts if you won the case (for example, 30% at $1M, 40% at $500k, and 30% at $250k).  As stated above, guard against overconfidence.  Take the average, and then multiply by chance of actually winning the case (say, 50%).  Finally, deduct the anticipated future litigation expenses including legal fees and costs from the date of mediation through trial (say, $75,000).  You will find that your $1M case is more accurately worth around $217,000, not $500,000.  Never lowball the fees and costs, and be sure both the lawyer and client have previously discussed the anticipated future legal expenses; it should not come as a shock to the client on the date of mediation.  Also remember the value of a case may change significantly over time.  New testimony and court rulings can substantially affect all three variables – your estimate of the recovery percentages, the chances of winning on liability, and the legal expenses required to get through trial.  The value to use at mediation is the value of the case on that day.

David provides additional insight in  part II  and  part III of this article series.

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Mediating a Text: A Practical Guide to Task Creation

by Riccardo Chiappini, Ethan Mansur in Blogs & Articles

Riccardo Chiappini  (left) and Ethan Mansur (right) have both worked in ELT for more than 10 years. In addition to collaborating on articles for ELT magazines, they have co-written materials for prominent publishers and institutions like the Spanish Ministry of Education. Most recently they helped with the integration of mediation into the new edition of the That’s English! coursebook series. They have also co-presented on the topic of mediation at ELT conferences around Spain.

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More From Forbes

How not to write your college essay.

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If you are looking for the “secret formula” for writing a “winning” college essay, you have come to the wrong place. The reality is there is no silver bullet or strategy to write your way to an acceptance. There is not one topic or approach that will guarantee a favorable outcome.

At the end of the day, every admission office just wants to know more about you, what you value, and what excites you. They want to hear about your experiences through your own words and in your own voice. As you set out to write your essay, you will no doubt get input (both sought-after and unsolicited) on what to write. But how about what NOT Notcoin to write? There are avoidable blunders that applicants frequently make in drafting their essays. I asked college admission leaders, who have read thousands of submissions, to share their thoughts.

Don’t Go In There

There is wide consensus on this first one, so before you call on your Jedi mind tricks or predictive analytics, listen to the voices of a diverse range of admission deans. Peter Hagan, executive director of admissions at Syracuse University, sums it up best, saying, “I would recommend that students try not to get inside of our heads. He adds, “Too often the focus is on what they think we want.”

Andy Strickler, dean of admission and financial aid at Connecticut College agrees, warning, “Do NOT get caught in the trap of trying to figure out what is going to impress the admission committee. You have NO idea who is going to read your essay and what is going to connect with them. So, don't try to guess that.” Victoria Romero, vice president for enrollment, at Scripps College adds, “Do not write about something you don’t care about.” She says, “I think students try to figure out what an admission officer wants to read, and the reality is the reader begins every next essay with no expectations about the content THEY want to read.” Chrystal Russell, dean of admission at Hampden-Sydney College, agrees, saying, “If you're not interested in writing it, we will not be interested when reading it.” Jay Jacobs, vice provost for enrollment management at the University of Vermont elaborates, advising. “Don’t try to make yourself sound any different than you are.” He says, “The number one goal for admission officers is to better understand the applicant, what they like to do, what they want to do, where they spend the majority of their time, and what makes them tick. If a student stays genuine to that, it will shine through and make an engaging and successful essay.”

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Don’t Be Artificial

The headlines about college admission are dominated by stories about artificial intelligence and the college essay. Let’s set some ground rules–to allow ChatGPT or some other tool to do your work is not only unethical, it is also unintelligent. The only worse mistake you could make is to let another human write your essay for you. Instead of preoccupying yourself with whether or not colleges are using AI detection software (most are not), spend your time focused on how best to express yourself authentically. Rick Clark is the executive director of strategic student success at Georgia Institute of Technology, one of the first institutions to clearly outline their AI policy for applicants. He says, “Much of a college application is devoted to lines, boxes, and numbers. Essays and supplements are the one place to establish connection, personality, and distinction. AI, in its current state, is terrible at all three.” He adds, “My hope is that students will use ChatGPT or other tools for brainstorming and to get started, but then move quickly into crafting an essay that will provide insight and value.”

Don’t Overdo It

Michael Stefanowicz, vice president for enrollment management at Landmark College says, “You can only cover so much detail about yourself in an admission essay, and a lot of students feel pressure to tell their life story or choose their most defining experience to date as an essay topic. Admission professionals know that you’re sharing just one part of your lived experience in the essay.” He adds, “Some of the favorite essays I’ve read have been episodic, reflecting on the way you’ve found meaning in a seemingly ordinary experience, advice you’ve lived out, a mistake you’ve learned from, or a special tradition in your life.” Gary Ross, vice president for admission and financial aid at Colgate University adds, “More than a few applicants each year craft essays that talk about the frustration and struggles they have experienced in identifying a topic for their college application essay. Presenting your college application essay as a smorgasbord of topics that ultimately landed on the cutting room floor does not give us much insight into an applicant.”

Don’t Believe In Magic

Jason Nevinger, senior director of admission at the University of Rochester warns, “Be skeptical of anyone or any company telling you, ‘This is the essay that got me into _____.’ There is no magic topic, approach, sentence structure, or prose that got any student into any institution ever.” Social media is littered with advertisements promising strategic essay help. Don’t waste your time, energy, or money trying to emulate a certain style, topic, or tone. Liz Cheron is chief executive officer for the Coalition for College and former assistant vice president of enrollment & dean of admissions at Northeastern University. She agrees with Nevinger, saying “Don't put pressure on yourself to find the perfect, slam dunk topic. The vast majority of college essays do exactly what they're supposed to do–they are well-written and tell the admission officer more about the student in that student's voice–and that can take many different forms.”

Don’t Over Recycle

Beatrice Atkinson-Myers, associate director of global recruitment at the University of California at Santa Cruz tells students, “Do not use the same response for each university; research and craft your essay to match the program at the university you are interested in studying. Don't waste time telling me things I can read elsewhere in your application. Use your essay to give the admissions officer insights into your motivations, interests, and thinking. Don't make your essay the kitchen sink, focus on one or two examples which demonstrate your depth and creativity.” Her UC colleague, Jim Rawlins, associate vice chancellor of enrollment management at the University of California at San Diego agrees, saying “Answer the question. Not doing so is the surest way we can tell you are simply giving us a snippet of something you actually wrote for a different purpose.”

Don’t Overedit

Emily Roper-Doten, vice president for undergraduate admissions and financial assistance at Clark University warns against “Too many editors!” She says, “Pick a couple of trusted folks to be your sounding board when considering topics and as readers once you have drafts. You don’t want too many voices in your essay to drown you out!” Scripps’ Romero agrees, suggesting, “Ask a good friend, someone you trust and knows you well, to read your essays.” She adds, “The goal is for the admission committee to get to know a little about you and who better to help you create that framework, than a good friend. This may not work for all students because of content but helps them understand it’s important to be themselves.” Whitney Soule, vice provost and dean of admissions at The University of Pennsylvania adds, “Avoid well-meaning editorial interference that might seem to polish your writing but actually takes your own personal ‘shine’ right out of the message.” She says, “As readers, we connect to applicants through their genuine tone and style. Considering editorial advice for flow and message is OK but hold on to the 'you' for what you want to say and how you want to say it.”

Don’t Get Showy

Palmer Muntz, senior regional admissions counselor at the University of Alaska Fairbanks cautions applicants, “Don’t be fancier than you are. You don’t need to put on airs.” He adds, “Yes, proofread your work for grammar and spelling, but be natural. Craft something you’d want to read yourself, which probably means keeping your paragraphs short, using familiar words, and writing in an active voice.” Connecticut College’s Strickler agrees, warning, “Don't try to be someone you are not. If you are not funny, don't try to write a funny essay. If you are not an intellectual, trying to write an intellectual essay is a bad idea.”

Anthony Jones, the vice president of enrollment management at Loyola University New Orleans offers a unique metaphor for thinking about the essay. He says, “In the new world of the hyper-fast college admission process, it's become easy to overlook the essential meaning of the college application. It's meant to reveal Y...O...U, the real you, not some phony digital avatar. Think of the essay as the essence of that voice but in analog. Like the completeness and authenticity captured in a vinyl record, the few lines you're given to explain your view should be a slow walk through unrestrained expression chock full of unapologetic nuances, crevices of emotion, and exactness about how you feel in the moment. Then, and only then, can you give the admissions officer an experience that makes them want to tune in and listen for more.”

Don’t Be A Downer

James Nondorf, vice president and dean of admissions and financial aid at The University of Chicago says, “Don’t be negative about other people, be appreciative of those who have supported you, and be excited about who you are and what you will bring to our campus!” He adds, “While admissions offices want smart students for our classrooms, we also want kind-hearted, caring, and joyous students who will add to our campus communities too.”

Don’t Pattern Match

Alan Ramirez is the dean of admission and financial aid at Sewanee, The University of the South. He explains, “A big concern I have is when students find themselves comparing their writing to other students or past applicants and transform their writing to be more like those individuals as a way to better their chances of offering a more-compelling essay.” He emphasizes that the result is that the “essay is no longer authentic nor the best representation of themselves and the whole point of the essay is lost. Their distinctive voice and viewpoint contribute to the range of voices in the incoming class, enhancing the diversity of perspectives we aim to achieve.” Ramirez simple tells students, “Be yourself, that’s what we want to see, plus there's no one else who can do it better than you!”

Don’t Feel Tied To A Topic

Jessica Ricker is the vice president for enrollment and dean of admissions and financial aid at Skidmore College. She says, “Sometimes students feel they must tell a story of grief or hardship, and then end up reliving that during the essay-writing process in ways that are emotionally detrimental. I encourage students to choose a topic they can reflect upon positively but recommend that if they choose a more challenging experience to write about, they avoid belaboring the details and instead focus on the outcome of that journey.” She adds, "They simply need to name it, frame its impact, and then help us as the reader understand how it has shaped their lens on life and their approach moving forward.”

Landmark College’s Stefanowicz adds, “A lot of students worry about how personal to get in sharing a part of their identity like your race or heritage (recalling last year’s Supreme Court case about race-conscious admissions), a learning difference or other disability, your religious values, LGBTQ identity…the list goes on.” He emphasizes, “This is always your choice, and your essay doesn’t have to be about a defining identity. But I encourage you to be fully yourself as you present yourself to colleges—because the college admission process is about finding a school where your whole self is welcome and you find a setting to flourish!”

Don’t Be Redundant

Hillen Grason Jr., dean of admission at Franklin & Marshall College, advises, “Don't repeat academic or co-curricular information that is easily identifiable within other parts of your application unless the topic is a core tenant of you as an individual.” He adds, “Use your essay, and other parts of your application, wisely. Your essay is the best way to convey who your authentic self is to the schools you apply. If you navigated a situation that led to a dip in your grades or co-curricular involvement, leverage the ‘additional information’ section of the application.

Thomas Marr is a regional manager of admissions for the Americas at The University of St Andrews in Scotland and points out that “Not all international schools use the main college essay as part of their assessment when reviewing student applications.” He says, “At the University of St Andrews, we focus on the supplemental essay and students should avoid the mistake of making the supplemental a repeat of their other essay. The supplemental (called the Personal Statement if using the UCAS application process) is to show the extent of their passion and enthusiasm for the subject/s to which they are applying and we expect about 75% of the content to cover this. They can use the remaining space to mention their interests outside of the classroom. Some students confuse passion for the school with passion for their subject; do not fall into that trap.”

A Few Final Don’ts

Don’t delay. Every college applicant I have ever worked with has wished they had started earlier. You can best avoid the pitfalls above if you give yourself the time and space to write a thoughtful essay and welcome feedback openly but cautiously. Don’t put too much pressure on yourself to be perfect . Do your best, share your voice, and stay true to who you are.

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‘inside out 2’ writer reflects on the anxiety of writing a movie about anxiety.

Dave Holstein, who faced immense pressure penning a sequel to the beloved 2015 hit, pens an essay reflecting on the personal and professional questions he grappled with along the way: "Where was Joy in all this?"

By Dave Holstein

Dave Holstein

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It’s a practical joke to ask a screenwriter to write about anxiety.

The very nature of the occupation is to walk around constantly asking yourself: What’s the worst thing that could possibly happen in this moment? To this character? To someone the character loves? To someone I love? To me?

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It had been a dream of mine to write at Pixar. Six years ago I had interviewed with director Dan Scanlon to write  Onward , but the timing didn’t work out when Showtime greenlit my Jim Carrey-starring series  Kidding.   Now, here I was again, passing beneath the giant Luxo lamp, getting the writer baton passed to me by the first movie’s author, the brilliant and incomparable Meg LeFauve, who had to leave the project to focus on a live action film she’d been working on with her husband. 

Not only would I be writing in her shadow but also the incredibly long shadow of a part cat, part elephant, part dolphin who cries candy. And although the Newtonian physics inside the world of Riley‘s mind are negotiable, perhaps the one scientific truth is that Bing Bong can only die once. 

So when I landed at Pixar’s campus in Emeryville there was a specific orange tang in my mouth — a flavor of anxiety created by looking up at this high bar and constantly wondering: Is the only successful version of this movie a somehow more perfect film that also has to clear $1 billion at the box office and also bring Pixar audiences back to theaters and also make you laugh and also cry and also answer a big philosophical question around minute 79 that you didn’t even know you needed? Also why is my hair turning gray? Will my six year old son watch it? Will he think it’s better than Cars? Can a movie truly compete with itself if you can only kill Richard Kind once? 

Those aren’t coat hangers hanging in Anxiety’s closet. Those are question marks. 

My father-in-law was the closest thing I had in this world to the character of Joy. He made friends in line at the grocery store. His kindness was Covid-contagious. His thick Maine accent and deep lexicon of regionally specific verbiage meant he could’ve easily pulled off a line like “jiminy mother-lovin toaster strudel” — even giving Amy Poehler a run for her money. 

We lost him in January after a long battle with mesothelioma — a lung cancer brought on by asbestos exposure from working in a steam plant in his 20s, an experience he said he would repeat if given the chance because it was how he met his wife. 

In the same 12 month period while writing this film I also lost the final three of my grandparents, including my grandmother, Audrey. The only reason I have a career in Hollywood is because 50 years ago she bought a house next door to the creator of  Family Ties  and asked if her sons could help on set. 

These are sad and stressful things, and perhaps too dark of a backdrop for writing the script for an animated family film — yes, even one for Pixar, whose siphoning of humanity’s tear ducts over a generation of heartfelt moviemaking could fill a sixth Great Lake. But they helped me answer the question I needed to answer. 

My original question of “Where is Joy in all this?” became “What happens to Joy as we get older?” Does Anxiety just take over? Does the dark stuff just add up and overwhelm you? Does the pressure to live up to the original film bury you under so many peppermints and gum drops? 

As we grow up, does Joy stop driving? Is the character’s pain just that? In the last movie she discovered the value of Sadness. In this movie, does she need to see the value of herself drifting away with time? But like, in a funny way? 

I remember looking over to our fearless director Kelsey Mann one day in the story room. He had more pressure on him than any of us – this was his first feature – and yet I never saw him crack once. I never saw him get angry or lose his patience or control. I saw him choose Joy. I saw him choose Joy every day. 

Now Joy isn’t always a choice. And Joy is definitely not an easy thing to create. But if the process of making this film has taught me anything it’s that she  begins  as a choice. And as we get older, Joy becomes more valuable, not less, because of the effort it takes to make that choice.

I hope audiences, young and old, experience this film without feeling the anxiety that it took to write, but rather the joy it took our entire team to complete. And I hope they leave the theater wanting to check-in with their own Joys. Their own Anxieties. And ask them how they’re doing.

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‘big daddy’ turns 25: how adam sandler proved his star power with the comedy hit, amazon prime video’s new releases coming in july 2024, what ‘a sacrifice’ director jordan scott learned from father sir ridley, ‘trans memoria’ director victoria verseau on how the film “saved me” and everyone is in “transition”, kevin costner’s moment of truth: with ‘horizon,’ has the gambler’s luck finally run out, kevin costner says he makes “movies for men” but always strives to include “strong women characters”.

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The Importance of Mediation in Family Law Cases

"Mediation provides parties with greater control over the process and outcome," according to Elisa Reiter and Daniel Pollack.

June 27, 2024 at 11:00 AM

4 minute read

Alternative Dispute Resolution

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Mediation has long been a cornerstone of family law, offering a less adversarial and more collaborative approach to resolving disputes. In 2024, the significance of mediation in family law has only grown, driven by legislative changes, evolving societal needs, and ongoing efforts to alleviate the burden on the courts. This article explores the current landscape of mediation in family law, particularly the work of Anthony Picchioni, Ph.D ., and other recent updates to the field.

According to the Texas Judicial Branch Annual Statistical Report for fiscal year 2020:

• “One-third of family cases were disposed of by agreed judgment in 2020.
• 27% of cases were disposed of by bench trials.
• Less than 0.1% of family cases were decided by jury trial.”

The Role of Mediation

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A year after affirmative action ban, how students are pitching themselves to colleges

• Deep Read ( 13 Min. )
• By Olivia Sanchez, Nirvi Shah, and Meredith Kolodner The Hechinger Report

June 28, 2024

In the year since the U.S. Supreme Court banned the consideration of race in college admissions, students have had to give more thought to how they present themselves in their application essays – to what they will disclose.

Data from the Common Application shows that in this admissions cycle, about 12% of students from underrepresented racial and ethnic groups used at least one of 38 identity-related phrases in their essays, a decrease of roughly 1% from the previous year. The data shows that about 20% of American Indian and Alaskan Native applicants used one of these phrases; meanwhile 15% of Asian students, 14% of Black students, 11% of Latinx students, and fewer than 3% of white students did so.

Why We Wrote This

A year ago, the U.S. Supreme Court barred affirmative action in college admissions. Students have since used their application essays as a place to explore identity.

To better understand how students were deciding what to include, The Hechinger Report asked newly accepted students from across the United States to share their application essays and to describe how they thought their writing choices ultimately influenced their admissions outcomes. Among them was Jaleel Gomes Cardoso from Boston, who wrote about being Black. 

“If you’re not going to see what my race is in my application, then I’m definitely putting it in my writing,” he says, “because you have to know that this is the person who I am.”   

In the year since the Supreme Court banned  the consideration of race in college admissions last June, students have had to give more thought to how they present themselves in their application essays .

Previously, they could write about their racial or ethnic identity if they wanted to, but colleges would usually know it either way and could use it as a factor in admissions. Now, it’s entirely up to students to disclose their identity or not.

Data from the Common Application shows that in this admissions cycle about 12% of students from underrepresented racial and ethnic groups used at least one of 38 identity-related phrases in their essays, a decrease of roughly 1% from the previous year. The data shows that about 20% of American Indian and Alaskan Native applicants used one of these phrases; meanwhile 15% of Asian students, 14% of Black students, 11% of Latinx students, and fewer than 3% of white students did so.

To better understand how students were making this decision and introducing themselves to colleges, The Hechinger Report asked newly accepted students from across the country to share their college application essays. The Hechinger staff read more than 50 essays and talked to many students about their writing process, who gave them advice, and how they think their choices ultimately influenced their admissions outcomes.

Here are thoughts from a sampling of those students, with excerpts from their essays. 

Jaleel Gomes Cardoso of Boston: A risky decision

As Jaleel Gomes Cardoso sat looking at the essay prompt for Yale University, he wasn’t sure how honest he should be. “Reflect on your membership in a community to which you feel connected,” it read. “Why is this community meaningful to you?” He wanted to write about being part of the Black community – it was the obvious choice – but the Supreme Court’s decision to ban the consideration of a student’s race in admissions gave him pause.

“Ever since the decision about affirmative action, it kind of worried me about talking about race,” says Mr. Cardoso, who grew up in Boston. “That entire topic felt like a risky decision.” 

In the past, he had always felt that taking a risk produced some of his best writing, but he thought that an entire essay about being Black might be going too far. 

“The risk was just so heavy on the topic of race when the Court’s decision was to not take race into account,” he says. “It was as if I was disregarding that decision. It felt very controversial, just to make it so out in the open.” 

In the end, he did write an essay that put his racial identity front and center. He wasn’t accepted to Yale, but he has no regrets about his choice.

“If you’re not going to see what my race is in my application, then I’m definitely putting it in my writing,” says Mr. Cardoso, who will attend Dartmouth College this fall, “because you have to know that this is the person who I am.”                       

 – Meredith Kolodner

Essay excerpt:

I was thrust into a narrative of indifference and insignificance from the moment I entered this world. I was labeled as black, which placed me in the margins of society. It seemed that my destiny had been predetermined; to be part of a minority group constantly oppressed under the weight of a social construct called race. Blackness became my life, an identity I initially battled against. I knew others viewed it as a flaw that tainted their perception of me. As I matured, I realized that being different was not easy, but it was what I loved most about myself.  

Klaryssa Cobian of Los Angeles: A seminomadic mattress life

Klaryssa Cobian is Latina – a first-generation Mexican American – and so was nearly everyone else in the Southeast Los Angeles community where she grew up. Because that world was so homogenous, she really didn’t notice her race until she was a teenager.

Then she earned a scholarship to a prestigious private high school in Pasadena. For the first time, she was meaningfully interacting with people of other races and ethnicities, but she felt the greatest gulf between her and her peers came from her socioeconomic status, not the color of her skin. 

Although Ms. Cobian has generally tried to keep her home life private, she felt that colleges needed to understand the way her family’s severe economic disadvantages had affected her. She wrote about how she’d long been “desperate to feel at home.”

She was 16 years old before she had a mattress of her own. Her essay cataloged all the places she lay her head before that. She wrote about her first bed, a queen-sized mattress shared with her parents and younger sister. She wrote about sleeping in the backseat of her mother’s red Mustang, before they lost the car. She wrote about moving into her grandparents’ home and sharing a mattress on the floor with her sister, in the same room as two uncles. She wrote about the great independence she felt when she “moved out” into the living room and onto the couch.  

“Which mattress I sleep on has defined my life, my independence, my dependence,” Ms. Cobian wrote. 

She’d initially considered writing about the ways she felt she’d had to sacrifice her Latino culture and identity to pursue her education, but said she hesitated after the Supreme Court ruled on the use of affirmative action in admissions. Ultimately, she decided that her experience of poverty was more pertinent. 

“If I’m in a room of people, it’s like, I can talk to other Latinos, and I can talk to other brown people, but that does not mean I’m going to connect with them. Because, I learned, brown people can be rich,” Ms. Cobian says.  She’s headed to the University of California, Berkeley, in the fall.

– Olivia Sanchez

Essay excerpt: 

With the only income, my mom automatically assumed custody of me and my younger sister, Alyssa. With no mattress and no home, the backseat of my mom’s red mustang became my new mattress. Bob Marley blasted from her red convertible as we sang out “could you be loved” every day on our ride back from elementary school. Eventually, we lost the mustang too and would take the bus home from Downtown Los Angeles, still singing “could you be loved” to each other.  

Oluwademilade Egunjobi of Providence, Rhode Island: The perfect introduction

Oluwademilade Egunjobi worked on her college essay from June until November. Not every single day, and not on only one version, but for five months she was writing and editing and asking anyone who would listen for advice.

She considered submitting essays about the value of sex education, or the philosophical theory of solipsism (in which the only thing that is guaranteed to exist is your own mind). 

But most of the advice she got was to write about her identity. So, to introduce herself to colleges, Oluwademilade Egunjobi wrote about her name.

Ms. Egunjobi is the daughter of Nigerian immigrants who, she wrote, chose her first name because it means she’s been crowned by God. In naming her, she said, her parents prioritized pride in their heritage over ease of pronunciation for people outside their culture. 

And although Ms. Egunjobi loves that she will always be connected to her culture, this choice has put her in a lifelong loop of exasperating introductions and questions from non-Nigerians about her name. 

The loop often ends when the person asks if they can call her by her nickname, Demi. “I smile through my irritation and say I prefer it anyways, and then the situation repeats time and time again,” Egunjobi wrote. 

She was nervous when she learned about the Supreme Court’s affirmative action decision, wondering what it might mean for where she would get into college. Her teachers and college advisors from a program called Matriculate told her she didn’t have to write a sob story, but that she should write about her identity, how it affects the way she moves through the world and the resilience it’s taught her. 

She heeded their advice, and it worked out. In the fall, she will enter the University of Pennsylvania to study philosophy, politics, and economics. 

I don’t think I’ve ever had to fight so hard to love something as hard as I’ve fought to love my name. I’m grateful for it because it’ll never allow me to reject my culture and my identity, but I get frustrated by this daily performance. I’ve learned that this performance is an inescapable fate, but the best way to deal with fate is to show up with joy. I am Nigerian, but specifically from the ethnic group, Yoruba. In Yoruba culture, most names are manifestations. Oluwademilade means God has crowned me, and my middle name is Favor, so my parents have manifested that I’ll be favored above others and have good success in life. No matter where I go, people familiar with the language will recognize my name and understand its meaning. I love that I’ll always carry a piece of my culture with me.  

Francisco Garcia of Fort Worth, Texas: Accepted to college and by his community

In the opening paragraph of his college application essay, Francisco Garcia quotes his mother, speaking to him in Spanish, expressing disappointment that her son was failing to live up to her Catholic ideals. It was her reaction to Mr. Garcia revealing his bisexuality. 

Mr. Garcia said those nine Spanish words were “the most intentional thing I did to share my background” with colleges. The rest of his essay delves into how his Catholic upbringing, at least for a time, squelched his ability to be honest with friends about his sexual identity, and how his relationship with the church changed. He said he had striven, however, to avoid coming across as pessimistic or sad, aiming instead to share “what I’ve been through [and] how I’ve become a better person because of it.” 

He worked on his essay throughout July, August, and September, with guidance from college officials he met during campus visits and from an adviser he was paired with by Matriculate, which works with students who are high achievers from low-income families. Be very personal, they told Mr. Garcia, but within limits. 

“I am fortunate to have support from all my friends, who encourage me to explore complexities within myself,” he wrote. “My friends give me what my mother denied me: acceptance.”

He was accepted by Dartmouth, one of the eight schools to which he applied, after graduating from Saginaw High School near Fort Worth, Texas, this spring.

– Nirvi Shah

Essay excerpt:  

By the time I got to high school, I had made new friends who I felt safe around. While I felt I was more authentic with them, I was still unsure whether they would judge me for who I liked. It became increasingly difficult for me to keep hiding this part of myself, so I vented to both my mom and my closest friend, Yoana ... When I confessed that I was bisexual to Yoana, they were shocked, and I almost lost hope. However, after the initial shock, they texted back, “I’m really chill with this. Nothing has changed Francisco:)”. The smiley face, even if it took 2 characters, was enough to bring me to tears. 

Hafsa Sheikh of Pearland, Texas: Family focus above all 

Hafsa Sheikh felt her applications would be incomplete without the important context of her home life: She became a primary financial contributor to her household when she was just 15, because her father, once the family’s sole breadwinner, could not work due to his major depressive disorder. Her work in a pizza parlor on the weekends and as a tutor after school helped pay the bills. 

She found it challenging to open up this way, but felt she needed to tell colleges that, although working two jobs throughout high school made her feel like crying from exhaustion every night, she would do anything for her family. 

“It’s definitely not easy sharing some of the things that you’ve been through with, like really a stranger,” she says, “because you don’t know who’s reading it.”

And especially after the Supreme Court ruled against affirmative action, Ms. Sheikh felt she needed to write about her cultural identity. It’s a core part of who she is, but it’s also a major part of why her father’s mental illness affected her life so profoundly. 

Ms. Sheikh, the daughter of Pakistani immigrants, said her family became isolated because of the negative stigma surrounding mental health in their South Asian culture. She said they became the point of gossip in the community and even among extended family members, and they were excluded from many social gatherings. This was happening as she was watching the typical high school experiences pass her by, she wrote. Because of the long hours she had to work, she had to forgo the opportunity to try out for the girls’ basketball team and debate club, and often couldn’t justify cutting back her hours to spend time with her friends.  

She wrote that reflecting on one of her favorite passages in the Holy Quran gave her hope:

“One of my favorite ayahs, ‘verily, with every hardship comes ease,’ serves as a timeless reminder that adversity is not the end; rather, there is always light on the other side,” Ms. Sheikh wrote.

Her perseverance paid off, with admission to Princeton University.

-- Olivia Sanchez

Besides the financial responsibility on my mother and I, we had to deal with the stigma surrounding mental health in South Asian culture and the importance of upholding traditional gender roles. My family became a point of great gossip within the local Pakistani community and even extended family. Slowly, the invitations to social gatherings diminished, and I bailed on plans with friends because I couldn’t afford to miss even a single hour of earnings.

David Arturo Munoz-Matta of McAllen, Texas: Weighing the risks of being honest

It was Nov. 30 and David Arturo Munoz-Matta had eight college essays due the next day. He had spent the prior weeks slammed with homework while also grieving the loss of his uncle who had just died. He knew the essays were going to require all the mental energy he could muster – not to mention whatever hours were left in the day. But he got home from school to discover he had no electricity. 

“I was like, ‘What am I gonna do?’” says Mr. Munoz-Matta, who graduated from Lamar Academy in McAllen, Texas. “I was panicking for a while, and my mom was like, ‘You know what? I’m just gonna drop you off at Starbucks and then just call me when you finish with all your essays.’ And so I was there at Starbucks from 4 until 12 in the morning.” 

The personal statement he agonized over most was the one he submitted to Georgetown University.  

“I don’t want to be mean or anything, but I feel like a lot of these institutions are very elitist, and that my story might not resonate with the admissions officers,” Mr. Munoz-Matta says. “It was a very big risk, especially when I said I was born in Mexico, when I said I grew up in an abusive environment. I believed at the time that would not be good for universities, that they might feel like, ‘I don’t want this kid, he won’t be a good fit with the student body.’”

He didn’t have an adult to help him with his essay, but another student encouraged him to be honest. It worked. He got into his dream school, Georgetown University, with a full ride. Many of his peers were not as fortunate. 

“I know because of the affirmative action decision, a lot of my friends did not even apply to these universities, like the Ivies, because they felt like they were not going to get in,” he says. “That was a very big sentiment in my school.”                       

– Meredith Kolodner  

While many others in my grade level had lawyers and doctors for parents and came from exemplary middle schools at the top of their classes, I was the opposite. I came into Lamar without middle school recognition, recalling my 8th-grade science teacher’s claim that I would never make it. At Lamar, freshman year was a significant challenge as I constantly struggled, feeling like I had reached my wit’s end. By the middle of Freshman year, I was the only kid left from my middle school, since everyone else had dropped out. Rather than following suit, I kept going. I felt like I had something to prove to myself because I knew I could make it.

Kendall Martin of Austin, Texas: From frustration to love

Kendall Martin wanted to be clear with college admissions officers about one thing: She is a young Black woman, and her race is central to who she is. Ms. Martin was ranked 15th in her graduating class from KIPP Austin Collegiate. She was a key figure on her high school basketball team. She wanted colleges to know she had overcome adversity. But most importantly, Ms. Martin says, she wanted to be sure, when her application was reviewed, “Y’all know who you are accepting.”

It wouldn’t be as simple as checking a box, though, which led Ms. Martin, of Kyle, Texas, to the topic she chose for her college admissions essay, the year after the Supreme Court said race could not be a factor in college admissions. Instead, she looked at the hair framing her face, hair still scarred from being straightened time and again. 

Ms. Martin wrote about the struggles she faced growing up with hair that she says required extensive time to tame so she could simply run her fingers through it. Now headed to Rice University in Houston – her first choice from a half-dozen options – she included a photo of her braids as part of her application. Her essay described her journey from hating her hair to embracing it, from heat damage to learning to braid, from frustration to love, a feeling she now hopes to inspire in her sister.  

“That’s what I wanted to get across: my growing up, my experiences, everything that made me who I am,” she says.

–  Nirvi Shah

I’m still recovering from the heat damage I caused by straightening my hair every day, because I was so determined to prove that I had length. When I was younger, a lot of my self worth was based on how long my hair was, so when kids made fun of my “short hair,” I despised my curls more and more. I begged my mom to let me get a relaxer, but she continued to deny my wish. This would make me so angry, because who was she to tell me what I could and couldn’t do with my hair? But looking back, I’m so glad she never let me. I see now that a relaxer wasn’t the key to making me prettier, and my love for my curls has reached an all-time high. 

This story about  college admission essays  was produced by  The Hechinger Report , a nonprofit, independent news organization focused on inequality and innovation in education. Sign up for Hechinger’s  higher education newsletter . Listen to Hechinger’s  higher education podcast .

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