• mediation speeds up resolution
    saves money, and satisfies clients.


how to prepare for mediation

Preparation begins with your case and your client.

Prepare For Trial
Before you step into the mediation room, you should have a command of the facts, law and issues comparable to what you would have on the first day or trial or arguing a summary judgment motion. Read the documents, review the depositions, assemble your case and your rebuttal to the points the other side can be expected to make.

Don’t leave out damages. Whether plaintiff or defendant, calculate them and support your position, getting the actual numbers from tax documents, accounting records, invoices, medical bills, expert reports or wherever they might be located.

Mediation Statement
Mediation statements may be shared with the other side or not. To enhance your chances of influencing your negotiating counterpart, it’s usually a good idea to share your statement, even if they don’t return the favor. If you are on the other side from an insurance company or similar large organization, you will want to put your strongest case in the statement and deliver it (whether or not asked for) several weeks before the mediation.

You want be sure that the person coming to negotiate has as much the authority to settle as possible, and keeping your powder dry can keep you from getting that person at the table. Beware the risks of attempting a “shock and awe” attack at the mediation, in the hope that the element of surprise will produce fear. It rarely does.

Client Preparation
Preparing the client is a delicate task. This may be an unfamiliar setting for the client, so provide resources so the client can read up on what goes on in mediation.

The client’s most important function is to make decisions about the future of the dispute. For this, the client needs to understand the merits of the dispute, but more importantly, needs to think through the comparative risks and benefits of litigation and settlement before the mediation session starts. The client should participate in your opening unless the client will be uncomfortable doing so or will make a weak witness. The client should understand that your role is to provide advice on legal and negotiation strategy, but that no one else can make the settlement decision.

Negotiation Strategy
Work with your client on a negotiation strategy. There may be information points you wish to hold for partway through the mediation. You should consider the range of possible outcomes in your case and probabilities, as well as the impact of an adverse verdict on your client. You should consider the value of certainty and the collateral impact of litigation, as well as the cost and disruption that it will cause. Discount your way to what seems like a “walk away figure,” where all those negatives will still not persuade you to settle based on your present thinking. This is your value for the “Best Alternative To A Negotiated Agreement,” or “BATNA.”

But beware attachment to your “walk-away” figure. A walk-away figure tends to take on a life of its own and lead to rigidity. The walk-away figure should be flexible enough to react to information that emerges at the mediation.

Opening Presentation Preparation
It is usually most effective to have the client prepared to speak and express his or her viewpoint to the other side directly after or as part of your presentation. The opening statement is not just a legal argument, though it usually includes that. It is the client’s opportunity to express how this dispute looks and feels from his or her position. Don’t underestimate the impact of the human factors as well as the legal factors for persuading the other side. Be sure the client has prepared and previewed with you (and perhaps with the mediator) what will be said.

Bear in mind that you are speaking to the mediator, but even more to the other side in the case. This is your best chance to speak directly to the decision-maker(s) on the other side without the filter of your opposing counsel. Don’t squander that opportunity by making it easy for the other side to discount your presentation.

Back to Top