Any darn fool can learn from his own mistakes. The wise learn from the mistakes of others.

- Julius Stark

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Preparing For Mediation

Over the years representing my own clients in mediation and serving as mediator in the disputes of others, I’ve developed a list of “best practices” which I believe will help lawyers achieve better results for their clients . What follows are my tips for preparing yourself and your client to mediate. I hope you find at least one suggestion worth adding to your current preparation practices. I welcome suggestions for additional tips.

Preparing Yourself

1. File Review: Now that you’ve made the judgment that mediation is appropriate and the timing is right, review your file from top to bottom, inside and out. Preparing for mediation is demanding and time consuming. The best lawyers get ready for mediation as thoroughly as they prepare for trial. Ironically, because so few cases actually go to trial these days, mediation may be your clients only “day in court.”

Where to start:

  • Unless you’ve decided to mediate early, you’ve invested substantial time and money in the deposition process. No one can remember all the important details, the little victories and concessions, the evasions and retorts. It’s worth going back and reading or rereading your deposition transcripts. As you do so, mark passages to be copied or quoted in your mediation summary.
  • Review key documents. Identify those to include in your mediation summary. Mark key information with a highlighter to draw the mediators attention or to find it more quickly at the mediation table.
  • Review interrogatory answers, responses to requests to produce and answers to requests to admit. Again, are there items to bring to the attention of opposing counsel and the mediator in your summary or at the table?

2. Case Analysis – Your claims or defenses: Analyze the strengths and weaknesses of your case. What are the chances of success? How persuasive is your evidence? What’s your theory of the case? How do you propose to present it?

Where to start:

  • Make a list of strengths and weaknesses in writing to insure that you don’t lose track or gloss over weaknesses. Embrace the strengths of your case, but be mindful that no case is perfect and yours is unlikely to be an exception. Do not overlook the weaknesses or sweep them under the rug.
  • Identify the risks. Consider how you will answer tough questions posed by the mediator or opposing counsel. Do you have an expert? If not, why not? Is there a witness you haven’t interviewed? Are there key documents you haven’t yet seen?
  • Develop a strategy to address each problem, weakness or risk. Should you candidly admit a weakness – especially one known to the other side - and establish credibility and realism with the mediator? You’re always better off thinking through your approach in advance. Coming up with a persuasive answer to tough questions is more difficult under pressure at the table.

3. Case Analysis – THEIR claims and defenses: Analyze the strengths and weaknesses of your opponent’s case. Put yourself in opposing counsel’s shoes. How is opposing counsel sizing things up? What are the risks facing your opponent?

Where to start:

  • Again, write them down. It’s easy to overlook or forget the other side’s strengths if you don’t. Seeing them on paper helps you put them in perspective.
  • How will you address their risks and problems most effectively during mediation? Will you mention them in opening statement? Should you hold back and wait for the other side to open the door? Holding a key fact or two in reserve ready to reveal at precisely the right time – generally when the other side has opened the door – can be very effective.
  • Prepare a set of questions to highlight opposing counsel’s risks in the event the mediator doesn’t see them. Be prepared to supply the mediator with questions you think the other side will have difficulty answering.

4. Establish a Range for the Value of Your Case: Based on your training and experience, what is the value of your case? How much is it worth? If you’re the plaintiff, how much should you take? If you’re on defense, what should you pay? What do you consider a win at trial? How much is a jury likely to award, and what are the chances a jury will render a verdict in your favor? What are your client’s goals? Are their objective best met by trial or through settlement?

Where to start:

  • If you have a partner or trusted confidant, review your evaluation with that person. Get a second opinion. Are you missing anything? Is there any reason to question your objectivity? A second opinion can provide an important wake up call.
  • Contact lawyers with similar cases? What have other cases like yours settled for? What’s a reasonable range?

5. Meet with your Client and Reach Agreement on Your Goal: Evaluating the case for your own purposes is, of course, only half the battle. Equally important is what your client needs and wants. Work with your client to arrive at an agreement on how to resolve the lawsuit. Failure to reach agreement before you start negotiating in mediation can lead to disaster. Too often, lawyers attend mediation without first having had a frank and open discussion about the value of the case with their client. No matter how confident counsel is that the client will listen and take her advice, checking in and bringing the client on board avoids nasty surprises, a Bar grievance, loss of the engagement and perhaps litigation.

Where to start:

  • If the client is someone who wants your input, share your evaluation of the case. Explain how you arrived at your number.
  • Determine whether your client has non-monetary goals or objectives. In employment cases, for example, does plaintiff want to remove objectionable material from his personnel file? Does she want a letter or recommendation or introduction? Does the employer want confidentiality, non-disclosure and non-disparagement? Often, non-economic terms can be barriers to resolution. Sometimes, non-economic terms can be traded for dollars.
  • Remind your client that the evaluation is what you want to pay or accept when the negotiation is over. It is not what your demand or offer will be.
  • Once you’ve agreed on a “bottom line”, decide what your opening offer should be and how you will rationalize or explain it.
  • Explain to your client that your "bottom line" is not set in cement, however. Flexibility at the mediation table is crucial. Your evaluation of what the case is worth is based upon the facts you can prove and the risks as you understand them. Because mediation is an information sharing and risk evaluating process, your "bottom line" will necessarily change as new information emerges, known information is seen in a new light and risk assessment is modified. There will be opportunities throughout the mediation process to re-evaluate the case – and make changes to your "bottom line," as necessary.
  • Think through an offer and concession strategy based on your opening offer. Have you given yourself enough room to move and still reach your real objective?
  • Try to anticipate how the other side will react and adjust your strategy accordingly. Are you starting in the right place? What message does it send? Assuming the other side will respond as you expect, what is YOUR next move?
  • If the parties have an ongoing business relationship, explore with your client whether mediation offers the opportunity to explore a business solution. Can your clients continue doing business? Can resolution be incorporated in whole or in part with ongoing business transactions? A business solution may require the parties to swallow their pride but may save substantial dollars and hassle.
  • Clients should be reminded that the evaluation of a case is necessarily based on the information known and the risks understood at the time the evaluation is made. Information exchange and realistic risk assessment are features of the mediation process. If mediation provides new information or new ways to see and evaluate the information already known, your evaluation should be flexible enough to make adjustments. Mediation is a dynamic process. Your “number” can change throughout the day. Clients who understand this principle will be more engaged and flexible at the table.

6. Prepare a Written Mediation Summary: If the goal of mediation is to reach a settlement, keep in mind that the mediator is without power to impose it. Only the other side has the power to agree to a resolution. The most important audience for your summary, therefore, is opposing counsel and her client. THEY are the people you must persuade. Consider how they will react to your words as you craft your mediation summary.

Where to start:

  • Decide who your target audience is. There are multiple audiences reading your mediation summary: The mediator, opposing counsel, opposing counsel’s client and your own client.
  • If the goal of mediation is to reach a settlement, keep in mind the mediator is without power to impose a resolution. The most important audience, therefore, is probably opposing counsel and her client.
  • Consider writing your mediation summary with opposing counsel and her client in mind. Think about how your summary might be different if it speaks to them rather than the mediator. It’s a very different concept, isn’t it? Even in high conflict cases where the parties and counsel are not getting along, lack trust and have grown to dislike one another, at least consider a written summary that speaks rather than shouts at them.
  • The mediator is not a decision maker or fact finder. It may sound unorthodox or counter intuitive, but your case is not going to settle unless the other side is convinced settlement is their best option. Your mediation summary is an excellent vehicle to explain to them in non-threatening terms how that might be. In most cases, a respectful tone coupled with a reasoned and logical presentation will increase the likelihood of reward.
  • Involve your client in the process. Provide a preliminary draft and solicit client input. Clients appreciate it, and the product is likely to be better and the narrative more accurate.
  • Attach copies of key documents, affidavits or transcript. Be selective. Include only what you think is most compelling. If a document or transcript excerpt is long, use a highlighter to draw attention to the most important words.
  • Use exhibit tabs to make it easy to find each one while reading the summary.
  • Send the other side two copies, one for the lawyer and one for the client. Encourage opposing counsel to share it with clients and offer to do the same.

Preparing Your Client

  • Client Participation: Most litigants are unfamiliar with the mediation process. The more they learn about it, the more comfortable they become. The better prepared they are, the more flexible and willing to reach resolution. Describe the mediation process and how it operates.
  • If a client centered, facilitative mediation process has been selected, prepare your client to communicate directly with the other side. This will be the only opportunity in the litigation process where clients can speak directly to one another.
  • Determine whether your client has something on her mind she WANTS to tell the other side. Does your client feel the need to apologize or acknowledge that a wrong was done? If so, work with your client to prepare that communication to be most effective. Practice what it will look like.
  • Anticipate whether the other side has a need to speak directly to YOUR client. It is not unusual in a death case, for example, for the widow to share her feelings of loss. On the defense side of such a case, preparing the defendant to listen and working on how to react can be very effective.
  • Explain the role of apology and acknowledgement in the settlement process. Is an apology or acknowledgement important in this case? If so, I’ve seen some awfully weak, counter-productive apologies. Work with your client to deliver a good one! The elements of a good apology are:

    1. Admit you’re sorry

    2. Acknowledge your responsibility

    3. Ask how you can make things right

In my experience, the better prepared the lawyers and clients, the better the process. The better the process, the greater the likelihood the parties will reach a satisfactory resolution. I hope these suggestions are useful

Please also review:

Mediation Overview

Are you Ready for Mediation?

The Mediation Process

Mediation Models

Mediation Process Road Map