In order to have a successful mediation session, we
suggest that you spend time preparing for this process.
This guide assumes you are in the litigation process,
and we include an asterisk by those parts of the guide
that pertain to litigation. Here is a guide to prepare
for a successful mediation:
1. Preparation of your case.
Know which facts are disputed and which facts are
not in dispute.
Focus on critical facts that are relevant to your
Identify the strengths and weaknesses of your case.
Lay out the elements of the causes of action,
defense and/or counterclaim, or claim or defense, if
you have not started the litigation process, and how
the facts of your case fit within these
elements. This will be the structure for the basis
of your preliminary statement.
Know the damages or other relief desired; whether
you are on the plaintiff’s side or the defense, know
what result you wish to accomplish.
Know comparable jury verdicts (if any). This
information will help you evaluate your goals and
have a realistic range of expectations. Consult with
other attorneys, or review verdicts provided by
Prepare and review your papers. This will provide us
with what, is in essence, a roadmap of your case.
You can provide a copy to opposing counsel along
with a confidential letter or document with
additional information strictly for the Mediator(s).
2. Assess your alternatives to settlement.
Know the risks involved in failing to settle.
Understand if you fail to settle and your case goes
to trial, you will either have a judge or jury make
the decision for you. What is the array of results
if you do not settle? In computing whether or not
you wish to settle, rather than go to trial, keep in
mind what the costs of going to trial may be, for
experts, attorney fees, jury cost, etc.*
What are your alternatives to trial? Binding
arbitration or private trial?
Determine what is the best and worst case
scenario. It is always important to try to
establish what the lowest or highest amount of money
is before you begin the process.
3. Educate and prepare your client.
Explain the process to your client so that your
client knows what to expect. Advise your client that
at times the process may seem at a stalemate, but
the mediator moves in a direction that the mediator
believes will accomplish a fair result.
Update the client on the status of the case. Explain
to the client where you are in the litigation
process and how much (or how little) time may be
saved by a settlement.*
Explain where you are in the negotiation
process. Obtain the client’s authorization for where
the negotiations will commence.
Explain to the client how the law applies to the
facts of the case. Assist the client in
understanding that some facts are irrelevant to the
case and that evidence must be admissible.
Assist the client in understanding that the result
that may be achieved under the law may seem unfair,
but may be all the law provides. Explain to your
client essentially no case is black and white, and
when they are in that gray area, a fair mediation
resolution is sometimes the better decision, than
taking chances with a trial.
Explain to the client any potential risks or delays
that are sometimes unavoidable, including,
continuations and problems with enforceability and
collection of a judgment, if applicable. Help the
client realize that obtaining a verdict may not
necessarily be the end of the process. Explain that
although rare, cases can be appealed which takes
longer, many times over one year, and may result in
a case going back to trial.
Define your client’s objectives. What does the
client hope to achieve? Try to define your client’s
objectives and goals in terms other than winning
Explore possible improbable positions and sensitive
issues with your client. Review the strengths and
weaknesses of the case.
Establish your authority to settle the case.
4. Verify that you have submitted all requested
Make sure you have sent opposing counsel everything
requested from you. This includes bills, medical
reports, lease documents, contracts, etc. If these
requested items were to be obtained from a third
party, verify that these items were sent.
Verify that you have received everything you have
requested from opposing counsel
Be sure all documents you intend to use in the
mediation are sent to us by the time we request