Preparing Clients for Mediation: Explaining the Process, Setting Expectations and Strategies, and Coaching Performance

Fri, Jun 27th, 2025 | by Miles Mediation and Arbitration | Article | Social Share

Preparing your client for mediation can ensure that the mediation process is productive and not a frustrating, anxiety-producing event. While settlement is always preferable, it is not the only measure of productivity in a mediation. Mediation is successful if it increases understanding of the case, fine-tunes risk assessment, and moves the parties closer to resolution.

How can counsel increase the chance for success in mediation and, in the process, increase your client’s trust in your advice and representation? By preparing your client for mediation ahead of time. Here’s how to do it.

Provide an Overview of the Mediation Process

Depending on your client’s background and experience of mediation, you should assume that an overview of the process will be helpful. The mediator will likely send a document explaining his or her process and may provide a review in the opening, but you should not rely on the mediator to prepare your client. Your client will want YOUR take on the process.

Explaining the process includes outlining who will attend and their roles. (This includes participants from your client’s side, including outside counsel, insurance representatives, financial experts, etc., and participants from the other side.) It is important that you are certain about the participants on the other side; the mediator should be able to keep you updated on any additions or subtractions. As in-house counsel, it will likely be your responsibility to coordinate and prepare all participants on your team.

If your mediation is court-ordered, explain to your client what that obligates everyone to do (act in good faith, have settlement authority, etc.) and what information will be reported back to the court. If mediation is voluntary or contractual, explain how that differs from a court-ordered mediation.

Explain why you chose or agreed to the specific mediator. Discuss the mediator’s background and experience, his/her reputation, your history with the mediator, and the mediator’s style and preferences. Outline the positives of the mediator, but also any reservations or cautions you have about him or her. Make sure that your client is aware of the costs of the mediator’s time and how long you anticipate the mediation will last.

Carefully explain mediation confidentiality with practical explanations and examples of what can be shared, and what cannot be, and to whom. Corporate and organizational clients face additional confidentiality issues because they may need information from insiders and may have to share information with these insiders.

You must make sure that these information needs are made clear to your client, the mediator, and opposing counsel. In most cases, your client will be seeking a non-disclosure clause in the settlement agreement. Discuss this with your client ahead of time. Finally, explain the role of caucus or private meetings with the mediator and the additional level of confidentiality the mediator must maintain when engaged in “shuttle mediation” between the parties.

Prepare Your Client for the Mediation

It is strongly recommended that you do not wait until the morning of the mediation to have your preparation meeting with your client. Although it is supposed to be a more relaxed process, it is likely unfamiliar and stressful for your client. Without the formal “guardrails” of court, mediation can feel like an exposed and vulnerable conversation with their opponent. Providing an opportunity to discuss the process and your client’s concerns some time prior to the date of the mediation allows concerns and ideas to percolate. It also helps you prepare for the mediation.

Explain your strategy, including opening statements, sharing and seeking information, concession plans, rationales, use of caucus with the mediator, settlement language, and parameters (bottom lines, scope of settlement authority, etc.). Work with your client to craft opening statements/summaries of the case and your goals in making those statements.

Usually, you will be giving the opening statement. However, if your client will make a statement in joint or private session, it is advisable to provide a script or bullet points for your client to review, and practice with him or her beforehand. (You should provide this for your opening as it will increase your client’s understanding of what will happen at the start of the mediation.) You might prepare a list of things NOT to say which is easier to develop when you have had a chance to hear your client speak.

Prepare your client for how your demeanor may change in mediation, especially compared to trial and private discussions in your office. Due to the more informal nature of mediation, you may have increased opportunities to interact with the opposing counsel or party. Depending on your relationship with opposing counsel or the local culture, your demeanor may be more friendly and courteous than your client expects.

You should also explain your demeanor in caucus. Often counsel is more relaxed and more forthcoming to the mediator about your client’s positions and interests. Sometimes, you may be more direct or express more frustration to the mediator than was expressed in your opening statements. Your client needs to be forewarned that your demeanor and information sharing may change when you are both alone with the mediator.

A major goal of client preparation is setting expectations of the process and, most importantly, the outcomes. A major cause of impasse is insufficient exploration of the client’s needs and interests, potential outcomes, and the possible need for compromise. Unfortunately, many parties view mediation as an opportunity to “have their day in court” and to argue their positions, rather than an opportunity to settle without further litigation.

To avoid impasse, discuss the risks, strengths, and weaknesses of both sides. Explore your client’s desire for settlement and explore the necessity of compromise and what that might look like in the mediation. Discuss your client’s emotional, relational, or non-monetary interests. Talk with your client about any “fairness” issues he or she may have with settling. And work through these topics with your client from the opposing party’s point of view.

You should also help your client to develop an information plan, keeping in mind the need to disclose and persuade, but also to protect intellectual property and trial strategy. You should also discuss the possible need for acknowledgment and apology, either for your client to give or to receive. Outline the possible need for and benefits from this kind of diplomatic exchange between the parties. Coach the content of any statement from your client and help your client to anticipate the possible responses from the other side. If your client would like an apology, explore what he or she needs to hear and the impact of an apology or acknowledgement.

An important outcome of your preparation meeting(s) with your client is clarity you can use to draft your confidential mediation statement. Most mediators prefer receiving these statements and any supporting documentation as they improve the mediator’s readiness and increase the efficacy of the mediation. (And you and your client will benefit from preparing to present your case to the mediator.)

Prepare Your Client to Work with the Mediator

You also want to coach your client to work with the mediator. Discuss the impression you want to give the mediator of your team, your positions, and your willingness to be cooperative (to a degree). Explain how the correct impression can affect the mediator’s interactions with both sides and the mediator’s suggestions and option-generation.

Make sure your client, and all members of your team, are clear on when and how to answer questions from the other side and the mediator. Explain that you will interrupt any questions that your client should not answer or should wait to answer in caucus. Describe how, in caucus, you can give the mediator information for his or her knowledge but not to share.

Remind your client that both you and he or she can ask for a private meeting just between client and counsel at any point, and more than once if needed. Let him or her know that you will mostly likely be the one to call for a caucus, but your client can let you know (discreetly) that he or she would like to have a private meeting with the mediator.

Set the Stage for a Successful Negotiation within the Mediation

Work with your client to craft one or more concession plans. Start with a discussion of his or her Best Alternative to Negotiated Agreement (BATNA), Worst Alternative to Negotiated Agreement (WATNA), and Most Likely Alternative to Negotiated Agreement (MLATNA). Discuss what you believe the Zone of Possible Agreement (or “overlap”) might be in the case. Handle this discussion with care, especially if this is the first time your client has had to fully face negative aspects of the case and a possible outcome which may not reflect his/her hopes and assessment of the case.

Review the following with your client: the client’s first offer, expected demands/offers from the other side, triggers for concessions on both sides, your client’s bottom line or “walkaway” number, whether rationales will be given for responses and concessions, and how much of your concession strategy you will share with the mediator.

Finally, once your client has agreed to a concession strategy, discuss the back-and-forth that may be required to come to a settlement. Explain that drafting may take some time (perhaps continuing after the mediation session). Show your client a draft settlement agreement, which may include global settlement provisions. Prepare him or her for the possibility that the other side might ask for policy changes and an agreed-upon public or organizational statement about the outcome of the mediation.

Caution your client that these requests often are introduced at the 11th hour and can take a significant amount of time to resolve to everyone’s satisfaction. Previewing this final stage of mediation has the psychological benefit of making settlement a reality for the client and prepares him or her for the hard work, team collaboration, and patience required to reach an acceptable settlement through mediation.

*Originally published in Missouri In-House Counsel and reprinted with permission.

About C.J. Larkin

C.J. Larkin has extensive experience as a mediator, facilitator, educator, and trainer. C.J. has mediated over 750 cases in the areas of employment, education, Title IX, family, attorney-client, small business, non-profit, and public/civil rights disputes. In addition to serving on the USA&M Mediator panel, C.J. has a private mediation practice in Denver, CO.