Setting the Stage for Successful Mediation: What to Tell Your Mediator Before the Session

The most successful mediations start with honest, thoughtful and concise communication with the mediator before the formal mediation session has started. Sometimes this is in writing in the form of a confidential mediation statement; other times this may be part of a confidential pre-mediation conference call with the mediator. These pre-mediation communications are not to be approached as if you are writing a summary judgment motion or making an opening statement or a closing argument. If your goal entering mediation is to convince the mediator that your client is right and the other side is wrong, then you are wasting your time and your mediation will likely fail. However, if your goal is to settle the case for a reasonable amount given the facts, the applicable law and the damages suffered, then you need to communicate with the mediator as such and go into the mediation with an open mind. 

Think of the pre-mediation statement or discussion as an introduction to the mediator. You are setting the tone, telling the mediator that you have thought about settlement long and hard, have prepared for different scenarios and are ready to come to the table to resolve the case. The points made here are the ones you want to develop in mediation, the ones that give you pause about a future trial outcome and the ones that brought you to mediation in the first place. I find these can be distilled into four key areas:

1. Statement of strengths:

Obviously, as an advocate for your client, you want to list your strengths. For example, in a breach of contract claim, if the contract calls for a term that was indisputably breached, then state that in no uncertain terms. If you have evidence that supports your claims, include it. If a judge has ruled in your favor on an issue or denied opposing counsel’s motion for summary judgment, that is important for the mediator to know. If some language in a prior order of the judge is helpful to your client, provide the order to the mediator.

2. Statement of weaknesses:

Most advocates shy away from listing weaknesses in this initial contact. Remember, however, that this is confidential communication. The statements you make to the mediator, whether written or verbal, will remain confidential. A good mediator will use such weaknesses as a reality check if, for example, the client is having a difficult time accepting the fact that their case has any weaknesses. A lawyer who says their case has no weaknesses is not at all helpful and is actually a barrier to settlement. All cases have weaknesses, like it or not, because litigation is inherently unpredictable. Going into mediation with blinders on, expecting to win the full value of your case, does not allow for flexibility, which is a hallmark of mediation. Spend some time thinking about this, and be honest with yourself, your client and the mediator.

3. Prior settlement attempts, if any, and why they failed:

If there have been prior settlement attempts, state the facts: When did the discussion happen? What were the terms offered? What was the response? When did it occur? Then, ask yourself why it failed. Did the parties simply not make another attempt? If certain terms were responded to and other terms were rejected outright, identify those terms that your client felt were so important that they ended settlement discussions rather than negotiate with or without that term. If the parties were too far apart simply on money, include the facts and evidence supporting your demand or offer that lead to your recommendation to end negotiations. Is there case law on point with similar facts and damages that the mediator should know about? Is there evidence supporting the plaintiff’s claim for damages? Or, conversely, is there evidence disproving the plaintiff’s claim for damages? Are the plaintiff’s alleged damages so severe or so unique that you couldn’t find any similar cases? Identifying your client’s strengths and weaknesses is beneficial here too because a plaintiff must prove liability and damages to obtain the sought-after recovery.

If no prior settlement discussions have occurred, then explain your client’s opening offer or demand and list the elements of your valuation of the claim. However, I strongly encourage the parties to make at least one exchange prior to the mediation, as this can streamline the process significantly.

4. Identification of settlement barriers:

Always mention any barriers to settlement. Perhaps it is a history between the parties or expected future dealings with the parties. Perhaps it is the emotional state of one party or the other. Or maybe it is opposing counsel or the financial situation of one party or the other. None of this will be something the mediator can discern in advance. Moreover, it is not something that needs a lot of explanation. A simple identification of the barrier is enough to spark conversation with the mediator.

Preparing for mediation with these four things in mind will likely lead to a successful and efficient mediation. Without adequate preparation, mediation can take much longer than necessary and exact a large emotional toll on the parties. Talk to your client about all of these issues prior to presenting them to the mediator so that there are no surprises for the client. When the parties come to the table prepared, it puts the mediator in the best position to focus on the core issues, gauge the parties’ readiness for settlement or trial and guide the parties to a mutually acceptable resolution. Successful mediations rarely begin when everyone enters the room; they begin with the preparation and conversations that take place beforehand.