Best Practices for Preparing a Mediation Memorandum On Behalf of a Plaintiff or Defendant / Insurer

Best Practices for Preparing a Mediation Memorandum On Behalf of a Plaintiff or Defendant / Insurer

Have you ever admired a fine piece of custom craftsmanship? The attention to detail? The refinement of the form? The overall beauty of the work? There is certainly a bit of an art to this kind of creation, but it’s clear the designer honed their craft over time and spent considerable time developing their skills.

Similarly, great mediation memoranda writers are not born – they are made. With tutelage, training and direction from colleagues, they have learned their craft and, with continuing practise, they have refined their skills.

If you have been tasked with preparing and writing a mediation memorandum on behalf of a plaintiff or a defendant, are staring at a blank page on the screen in front of you  and are wondering how you might produce something to match the calibre of the greats, fear not!

In this blog post, I outline some key considerations to keep in mind as you prepare your document, provide some tips for producing clean, clear and readable copy  and remind you that, ultimately, practice makes perfect. With hard work, thoughtfulness and good effort, you too can join the likes of the great mediation memorandum writers in the field.

Who Is The Target Audience?

Any skilled communicator will tell you that knowing your audience is absolutely essential to creating an effective message. Mediation memoranda will be read by multiple audiences so it’s important to keep in mind what each of the following types of readers will want or need to see. While mediation memoranda from both the plaintiff and defence share many similarities, throughout this post I will highlight some key differences.

In both types of memos, the mediator will look for evidence in the form of facts and context. The mediator will also look for pertinent aspects of law. This information will assist the mediator in their understanding of the issues so that they can reinforce your arguments with the other side in caucus.

The Plaintiff’s Memo

A mediation memorandum on behalf of the plaintiff will be read especially carefully by the defence. Although your memorandum may assist in the expectation management process between the defence counsel and the insurer, usually by the time you deliver your mediation memorandum, it is probably too late to make much of an impact. However, your submission can assist in focusing defence counsel on what matters to the fair and reasonable evaluation and settlement of the claim. A well-written memorandum will also clearly dispense with information that does not matter or, conversely, items you and your client view as non-negotiable.

As the key decision-maker on the defence side, an insurance representative reading this memo will have the opportunity to see the plaintiff’s claim directly and not selectively edited.

Your client, the plaintiff, will want to see careful attention to details such as date of birth, date of marriage, names and employment chronology among other facts. The mediation memorandum also provides another opportunity to manage a plaintiff’s expectations prior to a round of negotiations (though this can backfire if you are inclined to present large numbers/demands in your mediation memo).

The Defendant’s Memo

This memorandum should be written in a manner that helps manage the expectations of the plaintiff counsel and those of their client and in a way that focuses their attention on that which matters and that which does not matter.

A plaintiff reading this memo will see and digest the defendant’s case directly and without editing or commentary from their counsel. The ability to reach the plaintiff through the written word is an important opportunity to present a compelling case. Many plaintiffs are intelligent and reasonably well-informed about their case. Even if they don’t have the best understanding of the intricacies of the law, they will likely ask their lawyer for advice on the strength or viability of the arguments presented in the defence memorandum.


If there was such a thing as a job advertisement for mediation memorandum writers, the words “Procrastinators need not apply” would probably be bolded and underlined. Be aware that a submission’s tardiness may have some significant ramifications for your client.

Mediators often have a preferred timeline – typically 2 days to 7 days in advance of the mediation – to receive the mediation memo. However, if there are multiple parties, complex issues or a large quantity of documentation which you expect the mediator to read and digest, you should plan to allow more lead time.

Counsel for the plaintiff and the defence should be able to deal with the mediation memorandum in the same time frame allowed for the mediator. Send two copies of your mediation memorandum – including a complete copy for the insurance representative – by email to the opposing counsel as soon as it is ready.

The Plaintiff’s Memo

If the memorandum contains new reports or new facts or information which you expect to have a bearing on the defence assessment of the claim and the ultimate settlement value, then the memorandum should be sent at least two weeks in advance of the mediation and preferably four weeks or more in advance of the mediation. This extra time will permit the memorandum to be thoroughly read and digested and for the new information to filter through the insurance process so as to potentially increase reserves and monetary authority.

The Defence Memo

Similarly, new reports, facts or other information in the defendant’s memo that may have a bearing on the assessment of the claim by the plaintiff’s counsel and the ultimate settlement value should be sent with more lead-time. For example, surveillance reports or other investigation materials which strengthen the defence case or diminish the likelihood of a successful claim by the plaintiff may be included in the memo. Allowing additional time for the memorandum to be read and digested digested and for the new information to filter through the plaintiff’s or counsel’s assessment process may help to further manage expectations.

General Considerations for Tone, Style and Presentation

First impressions are extremely important; presenting a concise, persuasive, yet polite memorandum will help set the stage for a respectful and hopefully productive day at mediation.

A compelling argument, informed by the facts and the law, can get lost in the mix if your communication is garbled, disorganized, excessively lengthy, jarring, condescending or otherwise dismissive to readers.

For example, if you include an unnecessary amount of detail or reproduce long quotations from medical reports or case law, the reader’s attention may start to wander. Brevity is often appreciated. If a longer quotation is appropriate, introduce the quotation with a sentence to explain why the whole quotation is important and add emphasis to the quotation through italics or bolding to highlight what matters most in the quotation.

Wordiness, jargon and unnecessary detail will hurt readability. The plaintiff – who may be less familiar with legalese and industry terms – requires the defence memorandum to be in plain English and in a digestible format – this is a matter of style, presentation and content.

Describe the parties, witnesses, healthcare professionals, employers and all of the other actors in the claim in a consistent manner and in an orderly fashion. It will allow the reader to follow the story you are presenting.

Edit, edit, and then edit some more – strive to eliminate unnecessary detail. Keep in mind the Goldilocks principle – give the reader not too much information, not too little information, but just right amount to make and substantiate your arguments.

Consider using point-first writing to tell the reader why what they are about to read about is important.

Readability can be improved by the use of headings, quotations and bolding or highlighting to emphasize key points or by adding visual aids such as photographs, charts, graphs, timelines or diagrams. Only use acronyms that are well known [AB, LTD, IRB, etc.]. If the acronym is not commonly used, it is better not to shorten the name or the expression as it will reduce ease of reading and retention.

If there are a great number of tabs to the brief, consider using two-sided copying – remember that you want the mediator and the insurance representative to carry the brief, take it home, read it and bring it back to the office and to the mediation.

Finally, details matter; make sure the memo was seen/read/edited by one or more individuals other than the writer to catch typos, other errors or to provide perspective on your choice of language and tone. Perhaps ask these readers to imagine themselves as other parties reading this memo to better anticipate its reception and mediation participants potential reactions.

Organization and Intent: The Introduction

Your introduction or overview should establish the themes you want to be discussed at mediation and serves an important agenda-setting function. First, discuss the most important and impactful aspects of the claim.

For the plaintiff’s memo, acknowledging any real flaws or weaknesses to the claim will demonstrate you have considered this action critically and are attempting to make arguments that are reasonable and justifiable based on the circumstances. Similarly, if the defence memo acknowledges weaknesses in its position, it will signal to the plaintiff that the points of contention and defence arguments in the memo are ones that are believed to have particular merit.

By highlighting points of agreement, you can help to establish a common basis with the opposing counsel as a point of departure for areas where there is not unanimity. Outline the most important points of disagreement which may stand in the way of settlement and explain how those points or issues might be addressed in mediation or negotiations.

Finally, briefly discuss what is likely to drive the value and ultimate settlement of the claim. The plaintiff memo should acknowledge claims of lesser strength or value which are unlikely to drive settlement or stand in the way of a mutually satisfactory resolution and emphasize the points where there appears to be true disagreement. Consider quantifying the disagreement and suggesting ways and means to address. Similarly, the defence memo should focus on the claims most likely to require discussion for a mutually acceptable resolution.

Developing The Argument With Supporting Evidence: The Body

Having set the scene by using broad strokes in the introduction, a good mediation memorandum writer will use the body of the document to create a narrative designed to support legal arguments. Use relevant information and facts to aid in the development of the narrative you’re presenting.

The plaintiff’s memo should tell the plaintiff’s story (whether chronologically or by topics), develop the plaintiff’s arguments and anticipate and, when possible, diffuse counterarguments. The defence memo will need to express to the plaintiff what is realistically going to drive the issues which are truly in dispute, to understand those claims which are viewed seriously by the defence and to provide the relevant and pertinent evidence which is likely to impact on the assessment of the claims (and why certain other claims are weak or unlikely to drive settlement values).

If you are an exceptionally thorough researcher, you may be tempted to use every fact or detail at your disposal to make your arguments. Don’t! Use your comprehensive understanding of the case to decide which elements best communicate the strength of the plaintiff’s story and claim.

Provide key information, including dates of birth, present value calculations, summaries of income tax returns, employment information and the like. Costs associated with care or housekeeping and burn rates are also important. The inclusion of superfluous information or the production of every medical report and medical document will likely weaken the potency of your stronger points and evidence and distract readers from the narrative you’re offering.

Get to the meat of the issues. When reading the plaintiff’s memo, the insurance representative will need to gain a clear of understanding of why the various claims for damages will succeed and the realistic and accurate present day values for the claims. Conversely, the defence memorandum should illustrate why the plaintiff’s theory on liability or damages or both is flawed or unlikely to be accepted by the trier of fact.

If the law or the facts or both are on either the plaintiff’s or defendant’s side, explain how and why they apply to the case. If liability is an issue, the mediator needs to understand the relevant evidence applicable to the issue and any applicable law.

In making your case, you will also want to anticipate and contend with counterarguments. The plaintiff’s memo should deal with real issues impacting on the plaintiff’s credibility or causation the defence sees as potentially reducing the value of the claim. The defendant’s memo should concentrate on real issues of credibility as distinct from manufactured issues or isolated inconsistencies.

Remember to be scrupulously honest and accurate when setting out the facts or when referencing the findings, opinions or conclusions of experts – both yours or theirs. You can disagree with opinions arising from an assessment, but misrepresenting those opinions will diminish your credibility and reduce the likelihood of movement and ultimately a negotiated settlement.

Honing Your Skills

While this best practices guide will give you a good basis to write a mediation memorandum, you will likely develop and refine your own process and format over time. Be mindful of what you hear at the mediation to gauge whether you were as successful at telling your client’s story in an effective manner and try to keep this information in mind in the future.

The best writers never sit at a blank screen and feel as though they are starting a new assignment from scratch. Rather, they draw upon every previous writing experience to inform them and apply the lessons they’ve learned.  


Vance Cooper

Vance Cooper is principal of Cooper Mediation Inc. Vance devotes 100% of his professional time to mediating and arbitrating primarily personal injury and insurance cases. He serves as an arbitrator in loss transfer and priority disputes under the Insurance Act.

Vance can be reached at or (647) 777-4011.

To schedule a mediation with Vance, visit:

Cooper Mediation