Preparing for Successful Mediations: A Guide for Litigators

Litigators know how to prepare for trial.  Preparing for mediation is similar with one key difference: the goal in trial is to win, while the goal in mediation is getting the other side to say “yes.” So how you present your case to the opponent’s attorney and decision-maker is critical.    Here are some suggestions you might find helpful.

Preparing Yourself

  • Learn the names of the people who will attend the mediation, including the mediator, and find out something about them.

  • Review the file to gain command of the facts and relevant law.  It’s embarrassing to your client and obvious to the adversary when you fumble.

  • Analyze the strengths, weaknesses and risks of your case and strategize how you will address them.

  • Analyze the strengths, weaknesses and risks of the opponent’s case and strategize how you will address them.

  • Decide who will attend the mediation.

    • Ideally, the ultimate decision-maker: the person with authority to bind a party, who has the ability and clout to make an independent decision to settle and to understand and evaluate the case as it develops during mediation.  If that person cannot be present, the person who attends should have access to and the respect of the person who will make the decision.  The decision-maker should be available by phone.

    • Fact witnesses: They are generally unnecessary.  Although facts are discussed in mediation, it is not a fact-finding process.  The presence of fact witnesses may lead to counter-productive efforts to determine “the truth,” and persons involved in the dispute may add facts but be so intent on justifying their actions that resolution is blocked.

    • Other lawyers: the fewer the better.

    • Experts: they are expensive and their presence is generally not essential to settle a case.  If one side brings an expert, so will the other, and they will probably disagree.  Use their reports.

  • Select the documents to bring: key factual documents, demonstrative exhibits, summaries and analyses of potential damages.  In addition, if you have the case file on your computer, bring the computer so you can access additional documents if needed.

  • Meet with your client to develop your strategy and goals.

  • Prepare your mediation statement.  Many litigators prefer to send their statements only to the mediator and not to the opposing counsel.  They are missing a golden opportunity.  Since the goal in mediation is getting the other side to say “yes,” your most important audience is the opponent’s attorney and decision-maker.  By outlining the strengths of your case and adopting a cooperative tone, you are much more likely to achieve an acceptable outcome.  Exchanging mediation statements is especially helpful when the opponent’s decision-maker will not attend the mediation, as is often the case with large companies, government entities and insurance carriers.  If there is information you do not wish to share with the opponent, just put it in a separate statement sent only to the mediator.

  • Prepare the content and tone of your opening statement.  If there are going to be opening statements (a decision that should be made in advance jointly by counsel and the mediator), they should be tailored to present your case and your client’s interests in the best possible light without antagonizing your opponent.  Attorneys intent on putting on a show for their clients or trying to intimidate the opponent do not advance their client’s interest in settlement.

Preparing Your Client

Preparing clients is important, especially when they played a key role in the case, and their testimony, demeanor, credibility and level of interest in settling will be gauged by the opponent.

  • Explain the process, including the mediator’s role, caucuses and confidentiality.   Explain how mediation differs from litigation, with which the client may be familiar from experience or television.

  • Explain what the client should expect:

    • The adversary’s personal attacks and belittling of his/her case.

    • The mediator acting as devil’s advocate, pointing our weaknesses in your case.

    • The presentation of new facts or new ways of seeing facts that affect your perception of the case.

    • Disappointment with the other side’s initial demand or offer.

    • Impasse, and the mediator’s techniques for breaking it.

    • Prepare for a long day.  Bring reading material and snacks.

  • Spend time with your client to understand his/her real concerns, goals, wants, needs and interests.  Telling the mediator about your client’s concerns may help the mediator suggest a solution.

  • Discuss the strengths and weaknesses of your case, both to give the client a realistic picture and to prevent confusion and alarm when the mediator or opposing counsel brings them up.

  • Decide whether and when the client will speak.  Some lawyers instruct their clients not to speak in joint session, afraid they might damage the case.  But giving the client an opportunity to speak, whether in joint session or caucus, provides them with “a day in court,” a chance to tell their story as well as to “vent.”  Letting the client speak may increase the chances of success by giving them a role in the process.   In some cases, it is especially effective to let the client apologize or acknowledge how the other person was affected by the client’s actions.

  • Analyze possible remedies, including damages and non-economic elements, such as transfer to another job, time payments or a joint press release.

  • Set your initial offer or demand.  It will affect your opponent’s perception of your good faith and willingness to settle and may set a starting point that will steer the negotiation.  But don’t set a bottom line.  Parties and counsel must be flexible in responding to new information, positions and arguments that arise during the mediation and to change a point of view if contrary facts and explanations appear.

  • Be sure the client is focused on an acceptable resolution rather than an ideal outcome.   Explain the risks and costs of litigation (and possibly collection) and the benefits of settling, including the fact that 90-95% of civil cases settle eventually.

  • Be prepared to stay until the case is settled or until one or both parties or the mediator says impasse has been reached for the moment.

  • Explain that mediation may have benefits even if it does not result in immediate settlement.  It may help you understand the viewpoint, passion and determination of the other side, give you the opinion of a neutral on the merits of your case and keep channels open for future settlement discussions.

Richard S. Weil, copyright September 2015