Lawyers and mediators sometimes fail to appreciate that
a mediation requires as much advance planning and
consideration of strategy as a trial. Too often, lawyers
(and some mediators) pick up the file a day or two in
advance (at best) and wing it, relying on their advocacy
skills and smarts to negotiate their way through the
mediation day. This approach does not serve the needs
of everyone involved. By using the following mediation
countdown, everyone will come to the table prepared.
1. Develop a Timeline
Using the tools below, if you are counsel representing
a party, decide when you want the mediation, and
then plot your timeline just as if it were a trial date. List
all the tasks you need to do: prepare case analysis;
educate clients on the mediation process and their
role; and identify client positions and those of the other
side. Be sure to allow for significant trial events and
dates or any post-session follow-up.
2. Selection of the Mediator
Do not restrict yourself to the mediator your colleagues
have always used – ask them whether their
recommended mediators got the matter settled to their
satisfaction. Ask whether they and their client enjoyed,
or at least appreciated, the process with that mediator.
Consider agreeing to a mediator recommended by the
other side – presumably that is someone to whom they
3. Talk with the Mediator in Advance
Pre-mediation communication with the mediator
ensures that there are no last-minute surprises in terms
of which parties will attend and the format or process
to be used.
4. Identify the Right Participants
Select a knowledgeable client representative who
has the authority to settle the matter, even if it takes
some creativity. Then ask the other parties who their
representatives will be. They may this, although
they should. If one party feels that the other's
representative is not knowledgeable or does not have
authority, they may not listen to anything coming from
that side of the table. If there are multiple parties on
one side of the case, they should definitely confer
about their representatives.
5. Risk Assessment Steps
Objectively evaluate the best result, worst result, and
other potential scenarios and spend time making sure
that all the decision-makers and client representatives
understand the evaluations and agree with them. If
there is a difference of opinion amongst client stakeholders,
this must to be addressed so that mediation
counsel and the mediation representative have clear
You will learn a lot about your case and your opposing
party's case in a well-managed mediation. This
information may lead you to want more discovery or to
reevaluate your position. Therefore, do not wait until
the close of discovery or the eve of trial to mediate
– if it does not settle, you may need time to adjust
your strategy. Similarly, although mediating before
discovery commences can save a lot of attorney
fees that would otherwise be spent on discovery,
mediating without sufficient information will cause
one or both parties to be afraid of committing to a
settlement. Discuss with the other party and with the
mediator information that you need in order to evaluate
This article was originally published by LAW.COM
and is reprinted with their permission.
Mediation Advocacy –
Countdown to a Successful Mediation
By Barbara A. Reeves Neal, Esq.
| Page 2
your settlement position, and see if you can reach an
agreement for an informal exchange of that information
in advance of mediation position.
7. Multi-party and Missing Party Issues
In a complex case with numerous issues and parties,
consider mediating among all parties for a global settlement,
or taking it one bite at a time on a per issue
basis or among a limited number of parties. Are there
any hidden participants who should be at the table, but
are not? The increasing use of litigation funding often
means that there are investors who are fronting litigation
expenses in return for a share of the result. If they
are not represented at the mediation, you run the risk
that they will not understand the dynamics of the case.
8. Know Your Opening Move
Decide on your opening move before you get to the
mediation, and understand what message you intend
to convey with that position. Put it in writing and
discuss it with your client so that no one is fumbling
when it comes time to make your initial offer or
9. Plan Your Closing Alternatives
Identify settlement objectives in writing, with an
optimistic "stretch" objective, as well as a realistic
10. Bring a Settlement Draft with You to the Mediation
Drafting a settlement agreement after a long tiring day
of mediation leads to grumpy lawyers and mistakes.
Bring your draft settlement agreement with you to the
mediation and revise it as the day progresses to reflect
different provisions under discussion.
It's not over until everyone gives up. If the case does
not settle at the initial mediation session, follow up with
the mediator by phone and even schedule another session.
The dynamics of the case or the interests of the
parties may change over time.
Barbara Reeves Neal
is an arbitrator, mediator and special
master working with JAMS, specializing in insurance
coverage and based in Los Angeles. She can be
reached at email@example.com.