Preparing For Mediation Success: The Three Elements of Pre-Mediation Planning

Fri, Jun 28th, 2024 | by Miles Mediation and Arbitration | Article | Social Share

Would you go to trial without preparing? Of course, you wouldn’t. As the old saying goes: “failing to prepare is preparing to fail.” The same can be said for mediation. Failing to prepare for mediation will make mediation significantly more difficult.

Yet, as a mediator of construction, commercial, insurance, employment, and tort disputes, I’ve seen attorneys fail to prep their cases for mediation. Properly preparing all the key players will optimize your opportunity to obtain a successful resolution for your client at mediation. Here are the three critical elements to adequately preparing for mediation:

Preparing The Other Side

As an attorney, one of the core goals of mediation is to obtain a resolution that optimally addresses your client’s needs in the context of the facts and circumstances of the given dispute. To assist your client in potentially achieving that goal, you must timely provide opposing counsel, and by extension their client(s)/decision-makers, with the information necessary for them to be able to evaluate the case and make an informed decision about the risks and benefits.

This is particularly true if the opposing party is a business or a party that is represented under an insurance policy. Businesses and insurance companies require assessment, reporting, and approval to authorize any settlement authority for mediation—and they require sufficient time to do that. Failing to give opposing counsel the necessary information (theory of liability, damages, expert reports if applicable) to support your settlement demand and failing to give that information to them with sufficient time in advance of mediation for them to evaluate (probably no less than 30 days), will likely result in that party not bringing sufficient settlement authority to resolve your dispute. Similarly, providing new damages information for the first time at the mediation will not likely help you resolve the case.

Preparing Your Client

Properly preparing your own client is likewise critical to potential success. Has your client been through mediation before? Does your client know what to expect? Is there a significant emotional component to the case that impacts your client’s strategy or outlook? Have the necessary decision-makers been properly informed and provided the authority to potentially settle the case? What is your client’s desired outcome?

To be able to address these issues and prepare your client, you must know your case. What are the strengths of your case? What are the weaknesses? What type of consideration is your client seeking? Monetary? Non-monetary? What does a “good” settlement look like to your client?

If the case does not settle at mediation, how long will the case continue? How will the additional time, attorney’s fees, and expenses impact your client if the case does not settle at mediation? You need to be able to communicate and discuss these issues with your client in advance so that he or she understands the risks and is empowered to make the necessary decisions at mediation.

You and your client should also be prepared to be flexible both prior to and during mediation. As the mediation develops, you and your client may likely be challenged by opposing counsel and their clients with alternate factual interpretations or legal theories that you had not previously fully considered from their perspective. The ability of you and your client to consider this new information or strategies and reassess your position as the mediation develops will boost the potential for a resolution.

Preparing the Mediator

Preparing the mediator prior to the day of mediation can be a tremendous benefit to you and your client. How a mediator mediates a particular case will vary based on the type of case. Is it a construction, business, employment, or personal injury case? How many parties are involved (single plaintiff vs. defendant, or multi-party)? Or are there significant emotional components to be considered (such as those often present in business disputes, employment discrimination cases, or personal injury suits)? All this information helps a mediator prepare for mediation.

Providing the mediator with a confidential mediation statement is the most effective way to do so. Give the confidential mediation statement to the mediator as far in advance of the scheduled mediation as possible, especially if your statement contains a significant amount of backup materials such as expert reports or damages documentation. Include the background of the case (your client, the parties, the facts of the case), your theories as to liability and damages, case status (pending dispositive motion(s), trial calendar), and any prior settlement negotiations in your statement.

Finally, a short telephone call with the mediator closer to the mediation date to discuss your confidential mediation statement, any questions or issues that the mediator might want to explore with you about the case, or any questions or issues that you have, can be helpful. This call with the mediator can be used to confidentially discuss issues that you may need help with at mediation but did not want to include in your written statement. This can include issues such as the parties’ relationship, client expectations, or out-of-the-box settlement considerations that might help get the case settled. Preparing the mediator before the mediation will help the mediator know the parties better, the case better, and will likely help expedite the mediation process.

Getting to “YES”

The ultimate goal of mediation is to get the parties to mutually agree to a resolution of their dispute. Preparation is essential to that process. By timely preparing all the key players that are involved in the mediation, you maximize the potential of reaching a settlement for the benefit of your client. Prepare for success, and you are much more likely to achieve it.

About Jim Shea

Jim Shea mediates and arbitrates disputes in the Tampa Bay, Pensacola/Panhandle, and Atlanta areas. He also conducts virtual mediations throughout Florida and Georgia. Jim’s mediation practice focuses on construction, employment, insurance, business, and tort disputes.