by Glenn Loewenthal

This is my first in a series of mediation tips to help you get your cases resolved at mediation. The reason this tip is the first in the series is because this is sometimes the first dispute that comes up to derail a mediation session.


Most mediations, after a short introduction by the mediator explaining the mediation process, begin with opening statements by plaintiff’s counsel, followed by opening statements by defense counsel. If neither counsel mentions prior settlement negotiations, I will ask them about prior demands and offers while we are in the joint session.


I think it is important that everyone be on the same page before we move into separate caucuses. I am surprised by how many times both counsel are unprepared to answer this question. Answers such as “I’m not sure but I think it is $” or “let me look through my file” or “I will need to call my office and get that information” are not acceptable answers.


Any counsel that is prepared for mediation should be able to recite the dates and amounts of any settlement demands and offers that have been exchanged. Not having that information not only makes you look unprepared for the mediation, it doesn’t inspire a lot of confidence from your client.


If you don’t know what demands and offers have been exchanged, then how do you know where to start the negotiations in the mediation. I have seen too many mediations spend the first hour wasting time trying to figure out where the settlement negotiations are. The defense will say “We’re not responding to that demand when our records show they demanded less a month ago”, or the plaintiff will say “we’re not responding to that offer because they offered more a month ago.”


Know your pre-mediation demands and offers, have the dates and amounts written down, and have backup documentation ready to show to opposing counsel.