Preparing your Client for Mediation When You Represent the Defendant

By David Matthews


Preparing a Defendant for mediation presents some different challenges. In order to be successful, you must understand your client’s level of sophistication in connection with the entire mediation process, set up realistic settlement expectations, and have a viable gameplan.

First off, you need to be very familiar with your client’s background. Specifically, how experienced is your client with the mediation process? If your client is already experienced in litigation and has been in other mediations, your preparation can be far simpler. In that case, your focus should be on the facts of the case and coming up with a realistic settlement range. If your client is inexperienced or unsophisticated however, there will be more explanation needed.

Dont assume that an insurance adjuster has experience. We all have to start somewhere. Here are some critical questions to ask an adjustor:

  • How many years of experience do you have in the insurance industry?
  • How many times have you attended mediations? Were they successful?
  • Have you handled similar cases?
  • How long have you been with the company?

If your client is a business owner, spend some time trying to understand their business so you get a feel for how well they know their product or service and what litigation experience they have. Here are some questions to ask:

  • Have you or your company been named in a lawsuit before?
  • Have you defended a lawsuit while with another company??
  • Have ever been deposed or been a 30(b)(6) witness in a deposition?


If you determine that your client does not have much mediation experience, a few basic points about the mediation process itself may also need to be explained:

  • Make sure they understand the advantages of mediation rather than trial. The basic advantages are that trials are stressful, timeconsuming, expensive, and public. Juries are unpredictable. Verdicts can be appealed
  • Help manage expectations about the outcome. Explain that mediators are not judges, and that mediators don’t pick sides. They are not there to decide a Winner and Loser, but rather to find common ground. They find common ground most of the time.
  • It’s important that your client remain calm if the Plaintiff springs some surprises on you at mediation. Getting that result may require more discussion and handholding than you might initially anticipate.
  • Explain the arguments opposing counsel will likely use and how you will counter those  arguments.

You may want to explain what the client can anticipate on the actual day of mediation. Describe who the mediator is and why that particular person was chosen. If you’ve used that neutral before, give the client some details about them. Describe the personality types of opposing counsel and anyone else who may attend.

Remind the client that even if mediation is unsuccessful, it is still a great tool for moving the settlement process forward.

Whether your client is sophisticated or not, here are some important points to remember:

  • Have a gameplan ready. You know the value of thorough preparation, but does your client? Explain why it’s important to have a gameplan. Ask what their overall expectations are and encourage them to share a gameplan with you. You may have to explain the process of preparing that gameplan. Remember that in the long run, it’s better to be overprepared than underprepared.
  • Typically, the defense attorney will be writing evaluations ahead of time. How have you framed the issues in the mediation? How well have you informed your client as to what issues are going to come up? What do you think the settlement range will be? Your client will judge you based on what they perceive the settlement range should be. Do your homework to figure out the range and convey it to the client ahead of time, giving reasons why. Your performance will be judged on how close you got the optimal range.
  • Perspective is critical and your preparation is primarily about developing the client’s perspective. What do they think will happen? How close is the result to what they imagined? Their perception of the mediation process as well as their perception of the attorney’s performance will be determined largely by their perception that you develop with them before they ever go into mediation.

The bottom line is that preparing your client for mediation is critical. Make sure they understand what will happen and there are no big surprises. Have your gameplan ready. Make sure the settlement range is realistic. Try to anticipate any curveballs that might happen and how to deal with them. Both you and your client will be glad you did.


David Matthews has litigated commercial, business, construction and many other types of cases for 30 years. He has practiced in state and federal courts across the country and typically has ongoing cases in multiple states.  This enables him to have a much broader perspective on judges, juries and likely outcomes of cases.  David implements this knowledge in the mediation process by working with the parties and helping them to understand how a judge, jury or arbitrator might view their position. David has been a partner in the firm of Weinberg, Wheeler, Hudgins, Gunn & Dial, a national litigation firm, for 20 years.  He has a practical, current understanding of litigation which is valuable in the negotiation process.  He is in the trenches on a daily basis.  David has represented owners, contractors, subcontractors and designers in many states as well as owners and contractors in residential cases.  He is able to see the case from the viewpoint of each participant, and that translates to a high level of resolution